Fowler v. Unionaid Life Insurance Co.
| Decision Date | 14 October 1929 |
| Docket Number | 141 |
| Citation | 20 S.W.2d 611,180 Ark. 140 |
| Parties | FOWLER v. UNIONAID LIFE INSURANCE COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Benton Chancery Court; Lee Seamster, Chancellor affirmed.
Decree affirmed.
E M. Fowler, for appellant.
J V. Walker, W. B. Sorrels, Creed Caldwell, Bullion & Harrison and Duty & Duty, for appellee.
On the first day of October, 1914, the appellant, L. W. Fowler, made application for membership in the Mutual Aid Union, and was issued a certificate by said company. The application stated that it was understood that the value and conditions of the certificate for membership to be issued on this application shall be as follows: The application then states that, if death should occur within the first six months, the beneficiary shall receive $ 75, and that the value of the certificate would then increase $ 12.50 per calendar month until the value of the certificate was $ 1,000; provided that prompt and due payment be made of all assessments as provided by the by-laws and regulations of the Mutual Aid Union. The assessment was to begin at 38 cents and reach its maximum at $ 1.18.
This was a mutual assessment company, and the appellant paid his assessments from 1914 up until December, 1926, when the Mutual Aid Union entered into a reinsurance contract with the appellee.
The application also contained the provision that it should be considered a part of the contract for membership, and that, if the application was accepted and certificate issued, the applicant accepted the by-laws and regulations with all amendments governing the Mutual Aid Union, and appointed and constituted J. W. Walker, R. H. Whitlow and J. E. Felker, the officers of the Mutual Aid Union, jointly, and their successors, to be his lawful attorney in fact to cast his vote at the annual election on the first Tuesday in January of each year, not only on the question of the election of the directors, but any other question arising for consideration. This power of attorney was never revoked by appellant, and this application was a part of the contract and a warranty by the member.
From the application there was issued to appellant a certificate in Circle No. 3, certificate No. 822. It provided for the payment of the amounts mentioned in the application within thirty days after the receipt at the home office of satisfactory proof of the death of the applicant.
After the reinsurance contract was entered into between appellant and the Mutual Aid Union, the appellee wrote appellant a letter, and enclosed him a notice of the reinsurance agreement. It expressly stated in the letter that it assumed the liabilities of the Mutual Aid Union to its members and certificate holders, and would carry out the agreement of the Mutual Aid Union with the members, subject to the terms of the transfer.
The letter also stated: "Kindly attach the enclosed certificate of assumption to your membership certificate, which is all that is necessary, and hereafter address all communications and make your remittances for assessments to the Unionaid Life Insurance Company, Rogers, Arkansas."
The certificate of assumption accompanying said letter reinsured and assumed all liability under certificate No. 822, but expressly stated that this contract is made in conformity with the reinsurance contract between the Unionaid Life Insurance Company and the Mutual Aid Union, filed with and approved by the Commissioner of Insurance and Revenues of the State of Arkansas, etc.
Appellee sent appellant a notice on June 17, 1928, advising him that his rate for the month of June under the certificate that he held would be $ 1.92, and stated certain options that he might have.
The reinsurance contract provided that the payment of the premium or assessment should be determined by the acceptance of the terms and provisions.
The appellant in his application, as we have already said, provided that the application and certificate, together with the by-laws, are taken and construed as a part of the agreement. In other words, appellant's contract was not simply the certificate, but it was the application, the certificate and the by-laws of the company. This was the agreement of the parties. This was the contract.
The articles of incorporation of the Mutual Aid Union provided: "The board of directors shall have power to adopt and execute such plans and systems of insurance as they may deem for the best interests of the corporation; to fix and determine the amount for which the policy or certificate shall be issued, rates and amounts of assessments or premiums, and the terms and manner of payment thereof; to make, alter or repeal by-laws, rules and regulations for the transaction of the business of the corporation, and as they may deem expedient."
At the time that appellant made his application and received a certificate in 1914, one of the by-laws in force provided: "Any amendment, alteration or addition to this instrument must be proposed by one of the directors, and must have the unanimous support of the board of directors before being accepted."
It further states: "The association retains the right and privilege to call increased, additional or extra assessments for those members belonging to circles or in the step-rate divisions, as is necessary or deemed expedient by the board of directors."
The appellant first contends that the lower court committed reversible error in finding that appellee had a right to adjust the rate of insurance premiums which appellant had been paying, and he bases this contention on the fact that the application and certificate fixed the amount of assessments, the minimum being 38 cents and the maximum $ 1.18, and contends that this was a written contract between the appellant and the Mutual Aid Union, and that appellant had no right to change this written contract without his consent.
If the certificate and application constituted the whole contract, appellant's contention would be correct. But the certificate and application did not constitute the whole contract. It was expressly agreed by the parties that the by-laws of the association should be a part of the contract, and the by-laws authorized the increase of rates.
Appellant first cites and relies on the case of American Insurance Union v. Rowland, 177 Ark. 875, 8 S.W.2d 452. In that case, among other things, we said:
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...only when the intention of the parties clearly makes them such. Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275; Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611. Repetition of the preposition 'of' in the two 'damage' clauses clearly indicates a parallel of two separate and distin......
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...should never be adopted, if the contract can be construed to give effect to all provisions. Id. (citing Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611 (1929)). The problem in this case is that paragraphs eleven and sixteen simply cannot be harmonized. It is inconsistent to co......
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...the instrument in its entirety. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Fowler v. Unionaid Life Insurance Co., 180 Ark. 140, 20 S.W.2d 611 (1929). The two seeming contradictory obligations anticipate a possible change in status of the member physicians. It ......
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