Grant v. Independent Order of Sons & Daughters of Jacob

• Decision Date: 27 June 1910
• Docket Number: 14193
• Citation: 97 Miss. 182,52 So. 698
• Parties: HAMMOND GRANT v. INDEPENDENT ORDER OF SONS & DAUGHTERS OF JACOB OF AMERICA ET AL
• Court: Mississippi Supreme Court

52 So. 698

97 Miss. 182

HAMMOND GRANT v. INDEPENDENT ORDER OF SONS & DAUGHTERS OF JACOB OF AMERICA ET AL

No. 14193

Supreme Court of Mississippi

June 27, 1910

FROM the chancery court of Warren county, HON. JAMES STOWERS HICKS, Chancellor.

Grant the appellant, was complainant in the court below; the Independent Order, etc., and one Maggie Nicholson were defendants there. From a decree in favor of the defendant Maggie Nicholson, the complainant appealed to the supreme court.

Affirmed.

Henry Fox & Canizaro, for appellant.

T. Dabney Marshall and T. G. Burchett, for appellee.

[The briefs of counsel in this case were lost or withdrawn from the record, before it reached the reporter, hence synopses of them are not given.]

OPINION

WHITFIELD, C.

The original bill in this case was filed by Hammond Grant against the Independent Order of Sons and Daughters of Jacob, and Maggie Nicholson; the effort being on the part of Hammond Grant, the husband and only heir of the deceased, Maria Grant, to recover the proceeds of an insurance policy taken out by Maria Grant in this order for an amount not to exceed $ 700. The order paid into court the sum of $ 550, to be contested for by Maggie Nicholson and Hammond Grant, and it was thereupon discharged. When the case came on to be tried, certain witnesses were introduced for the complainant and examined, but not cross-examined by the respondent. The chancellor stated that he thought the case turned upon a pure question of law, and thereupon by agreement of counsel on both sides no more witnesses were introduced, although the complainant had more witnesses and the defendant had witnesses also, and it was then and there agreed for the purpose of the trial that the following were the facts of the case, to wit:

"That Hammond Grant had legally and lawfully married Maria Moore (at that time Maria Smith), the insured, in the year 1883; that he lived with her several years, and that he went to New Orleans on account of a jealous quarrel; that there was never any divorce had between him and Maria Moore, and that he never afterwards lived with her as her husband; that while complainant was in New Orleans Maria married Alex. Moore in the year 1899; that while married to said Moore, and while complainant was in New Orleans, the insured took out a policy in favor of Moore and Susie Bayle; that afterwards Maria separated from him (husband No. 2; that is, Moore), and she surrendered the policy made out in Moore's and Susie Bayle's favor, and another policy in favor of Maggie Nicholson, was taken out, which policy is marked 'Exhibit A' to answer; that the said Maggie Nicholson, from the time she was made beneficiary under the said policy and up to the time of the death of said insured, paid all dues and assessments under the said policy; that the constitution and by-laws under which said policy in favor of Maggie Nicholson was issued continued in force until October, 1906; that afterwards a new constitution and by-laws were promulgated and adopted on the 25th day of October, 1906, which constitution is here marked 'Exhibit 4'; that at the time the policy was taken out in favor of defendant there was no restriction in the by-laws then in force as to the choice of beneficiary, as it appears from by-laws of 1901, marked 'Exhibit 2,' but the following provisions in the new charter were then in force, to wit: 'Section 3, Charter 1902. To carry out its aims and objects, which are charitable and benevolent, the corporation shall have power to establish and maintain a benefit fund, to be paid at or upon the death of a member in good standing, who has taken the degrees provided by law, to his or her heirs at law, or disposed of as he or she under the laws of the order shall direct. And the amount to be paid on account of any one death shall be such part of a per capita assessment levied upon and collected from the members of the order as may be provided by law. But the amount so paid shall never exceed the sum of two thousand dollars.' It is agreed that the defendant was not a member of the order, and had no actual notice of the amendment to the by-laws and constitution; that after the new constitution and by-laws had been adopted and were in force she continued to pay, and the order continued to receive from her, the dues on said policy. It is further agreed that the defendant Maggie Nicholson was no kin and no relation to the insured, Maria Moore, and that she was not dependent upon said insured or her estate." The learned court below, applying the law to this agreed statement of facts, found against the appellant, Hammond Grant, and dismissed his bill, and awarded the money paid in by the order to Maggie Nicholson. From this decree the appellant brings the case to this court.

The constitution and by-laws of the order are made exhibits to the pleadings. The appellant insists that the decree should be reversed for two reasons: First. Because the policy was a wagering policy, and therefore void as against public policy, though the bill makes no attack on the policy as a wagering contract. Second. Because the policy is governed, as it is insisted, by the following provision in the constitution and by-laws of the order, adopted in October, 1906, to wit: "Death benefits of the order shall be paid only on the death of such members of the order as at death hold a financial membership in the order and leave executed as required by the order on prescribed blanks of the order, and benefit certificate through a subordinate lodge or through a Royal House of King David; provided, however, one by financial membership and executed certificates of the order, both in a subordinate lodge and Royal House of King David, may have paid on his death a benefit of each of said divisions. No one shall be a beneficiary of any Jacob benefit or benefit certificate except a husband, a wife, or some legal dependent or dependents of the member of his or her (that is, the members) estate"--on the notion that this provision is retroactive. The first thing to be observed is that we are bound clearly to look only to those facts which are set out in the agreed statement of facts. If counsel below have been so unfortunate as to omit out of this agreed statement facts which they desired considered by us, that is not a matter which we can help. Looking to this agreed statement of facts, and the pleadings, we find nothing which indicates that this policy was intended to be a wagering policy. The agreed statement of facts makes just this case, and nothing more, on this point: That the original policy was issued in November, 1883, payable to Alex. Moore and Susie Bayle, and that there was no restriction as to the beneficiary to be named in the constitution and laws of the order; that the second policy, payable to Maggie Nicholson, was issued in December, 1903; and that Maggie Nicholson was no kin to Maria Moore, and no relation of hers, and was not dependent upon her or her estate. Maria Moore seems to have paid the assessments and dues until the second policy was issued, and Maggie Nicholson paid them from the time of the issuance of the second policy; but there is not a hint in the agreed statement of facts, or answer, of any fact which shows or tends to show any purpose or agreement to enter into a wagering policy. On the contrary, it is plainly manifest from the agreed statement of facts, taken in connection with the two policies themselves, that the original policy was valid in its inception, perfectly legal in all respects, and that the second policy, so called, was in legal effect, a mere assignment of the first. No change was made, except to name a new beneficiary. In other words, we have, looking to the facts of the two policies and to the agreed statement of facts, an original policy perfectly valid in its inception, afterwards assigned by a change of beneficiary to Maggie Nicholson, who had no insurable interest in the life of the insured. Now it is settled in this state by Murphy v. Red, 64 Miss. 614, 1 So. 761, 60 Am. Rep. 62, "that it is lawful for one to insure his own life, and after he has done so the policy becomes his own, and there is no good reason why he may not sell or dispose of it, as he may of any other chose in action, if the policy was valid in its inception."

The learned counsel for appellee, in their able brief themselves cited 1 Cooley's Briefs on Law of Insurance, p. 262, which states as follows: "One of the most important questions in life insurance is whether a policy, valid in its inception, may, in the absence of statutory provisions, be assigned by the insured or the beneficiary to one having no insurable interest in the life of the insured. The authorities are in hopeless conflict on this point." And at page 258 it is said "that the weight of authority is that one may take out insurance on his own life for the benefit of one having no insurable interest in the life insured." And the same doctrine is declared in Dolan v. Supreme Council Catholic Mutual Benefit Association, decided by the supreme court of Michigan in 1908, reported in 152 Mich. 266, 116 N.W. 383, also cited by the learned counsel for appellee. We may say, in passing that this whole subject is reviewed in a most complete and masterly way in the learned note to Metropolitan Life Insurance Co. v. Elison, 3 L.R.A. 935. The authorities on this subject are very exhaustively collected and most accurately discriminated. We have this matter settled for us by Murphy v. Bed, and since there is no evidence in the case, in the agreed statement of facts, which must control, showing that the policy was a wagering policy as originally taken out, but, on the contrary, since it is shown that it was a valid policy in its inception, its assignment to Maggie...