Eminent Household of Columbian Woodmen v. Hewitt

• Decision Date: 06 March 1916
• Docket Number: 221
• Citation: 184 S.W. 52,122 Ark. 480
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HEWITT
• Court: Arkansas Supreme Court

184 S.W. 52

122 Ark. 480

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HEWITT

No. 221

Supreme Court of Arkansas

March 6, 1916

Appeal from Howard Circuit Court; Jefferson T. Cowling Judge affirmed.

Judgment affirmed.

Wm. A Roane (of Atlanta, Ga.) and W. C. Rodgers, for appellant

The policy sued on provides that, "This covenant is executed in consideration of the compliance on the part of this Guest with the constitution and by-laws of this fraternity now existing or hereafter legally amended, all of which are a part of this covenant." The by-laws thus mentioned became by operation of law a part of the insurance contract. 52 Ark. 202, 206; 55 Ark. 210, 212; 80 Ark. 419, 21; 81 Ark 512, 514; 105 Ark. 140; 24 F. 97; 110 Ia. 642; 89 Mo.App. 621; 34 Mont. 357; 33 F. 11.

It is not necessary that the by-laws be referred to in order that they may become binding. 118 Cal. 6.

The assured must come within the requirements of future as well as existing by-laws. 118 Cal. 613.

The constitution of the order reserves the right "From time to time to amend its constitution and by-laws."

One who becomes a member of a mutual insurance company thereby assents to all its by-law's. 123 Ind. 128; 101 Mich. 161. And such a person is conclusively presumed in law to have made himself familiar with the constitution and by-laws. 1 Bac. Ben. Soc., § 157.

And whether they do so or not, the law imposes knowledge thereof on all members. They must take notice of these laws of the order at their peril. 102 Ind. 462; 1 Bac. Ben. Soc. § 81; 7 W. & S. (Pa.) 348, 351; 18 Ia. 425, 531; 46 Vt. 362, 371; 51 Pa.St. 402.

By joining the order the member is deemed to have assented to the by-laws and to have contracted with reference thereto. 46 Vt. 362, 371; 71 Ala. 436.

Even though the member be utterly ignorant of the by-laws, he is nevertheless bound thereby. 123 Ind. 128; 90 Ia. 685; 24 Hun, 149.

Where the right of amendment is reserved in the contract a member can not complain of an amendment even though it may affect him injuriously. 117 Cal. 370; 99 Cal. 392.

A member can not claim the benefit of his contract with the order and in the same breath repudiate the constitution and by-laws by which it is governed and to which it owes its existence. 29 Pa. Sup. Co. 492.

The policy provides that the assured in event of injury shall furnish satisfactory proof thereof, and to make this meaning clear, further provides that "satisfactory proof shall be taken to mean an x-ray photograph made and certified by a physician selected by the eminent director." Thus the assured is definitely directed what kind of proof shall be made. It is conceded that this requirement was not complied with.

The assured recognized his duty of conforming to this method of proof, but the examination did not show a fracture and he repudiated it and resorted to other testimony not authorized by the constitution and by-laws. When the law provides that something must be done in a certain manner this necessarily precludes any other manner of performance. Expressio unius est exclusio alterius. 10 N.Y.S. 436, 437; 28 N.J.L. 491, 497; Ex parte Jordan, 94 U.S. 248.

The requirement that the proof shall be made in the manner stipulated necessarily implies that it may not be made in any other. 66 U.S. 55; 103 U.S. 770; 38 Ark. 205, 206; 45 Ark. 524, 527.

If the assured is not required to comply with this by-law, the order should not be required to comply with any other. If the by-law can be ignored by the assured, a member of the order is more powerful than its by-laws. We can see no good reason for such a construction.

D. B. Sain and T. D. Crawford, for appellee.

1. It is conceded that the by-laws of a fraternal order become part of the contract, and that the assured is bound by subsequent amendments where the right is reserved in the contract or charter. Vance on Ins. 193; 83 Am. St. 714. But the mere fact that a member agrees to comply with all the laws of the order subsequently enacted in no manner alters the rule that such laws should be given a prospective operation in the absence of a clear intent that they should act retrospectively. 112 Ga. 545; 1 Bacon Ben. Soc., § 187; Niblack, Acc. Ins. and Ben. Soc., p. 62; 104 F. 638; 59 Wis. 162; 4 Hun, 339; 22 Ore. 271; 164 Ill. 344; 45 N.E. 543.

2. If the by-laws intended to make plaintiff's right to recover depend upon procuring an x-ray photograph and a physician selected by his "eminence," the "medical director," such a by-law is unreasonable and void. 1 Bacon on Ben. Soc., § 85; 54 L. R. A. 602, 605; 55 Id. 465; 76 S.W. 259; 78 Minn. 448; 160 N.Y. 549; 172 N.Y. 515.

3. Facts peculiarly within a defendant's knowledge need not be proven by plaintiff. 2 Bacon on Ben. Soc., § 469; 39 Ark. 209; 2 Chamb. on Ev., § 978; 56 Ark. 127. No specific objections were made to the instructions. They should be construed together. The burden was on appellant to show nonliability. 173 S.W. 838;80 Ark. 190; 87 Id. 115; 108 Id. 130; 111 Id. 554; 29 Cyc. 232-3.

OPINION

MCCULLOCH, C. J.

Appellant is sued on a life and accident insurance policy issued to appellee, as one of its members, the right of action in the case being based on an accidental injury alleged to have been sustained by appellee, resulting in a fracture of one of his arms. There was a trial of the issue before a jury and a verdict in favor of appellee for the full amount mentioned in the policy for that character of injury.

The policy was issued to appellee in the year 1908, and the accidental injury is alleged to have occurred in February, 1915. Appellee adduced the testimony of himself and two or three physicians who treated him, to the effect that his arm was fractured. The affidavits of the physicians were sent in to appellant with the proof of injury, and at the request of appellant the appellee submitted to an x-ray examination by a physician designated by appellant, and furnished the x-ray photograph as a part of the proof of loss, but the photograph did not show that there had been a fracture. The physician who made the x-ray examination testified that there was no evidence disclosed by the examination that there had been a fracture.

Appellant defends on the ground that there is no liability unless the fracture be disclosed by an x-ray examination by a physician of its own selection. It relies, for this defense, upon an amendment to the by-laws enacted subsequent to the date of the issuance of the policy to appellee. The benefit certificate or policy recited that it was executed in consideration of the warranties made by the assured in the application, and his compliance with the constitution and by-laws of the fraternity "now existing or hereafter legally amended, all of which * * * are a part of this covenant." The original by-laws in force at the time of the issuance of the policy to appellee provided that if the beneficiary suffer a fracture of the arm he should be paid the sum of $ 200, and the policy contains a covenant to that effect.

At the annual meeting of the fraternity in December, 1914, the by-laws were amended by the enactment of another section in the following language: "Section 8, article 11. In the event of fracture as provided in this section, satisfactory proof thereof shall be furnished the society, and satisfactory proof in such case shall be taken to mean an x-ray photograph made and certified to by a physician selected by the eminent medical director, the expense incurred in connection with such proof to be paid by the society."

The constitution and by-laws, as set forth in the record in this case, contain no further reference to a requirement for a proof of loss, and the question of liability turns upon the construction of the amendment quoted above. Much effort is devoted by counsel to discussion of the question whether or not the amendment can be given a retroactive effect so as to apply to a contract with appellee entered into prior to the enactment of the amendment. The view we take...