Sovereign Camp, W. O. W. v. Waggoner

• Court: Mississippi Supreme Court
• Writing for the Court: Cook, J.
• Citation: Sovereign Camp, W. O. W. v. Waggoner, 173 So. 424, 178 Miss. 418 (Miss. 1937)
• Decision Date: 05 April 1937
• Docket Number: 32607
• Parties: SOVEREIGN CAMP, W. O. W., v. WAGGONER

173 So. 424

178 Miss. 418

SOVEREIGN CAMP, W. O. W., v. WAGGONER

No. 32607

Supreme Court of Mississippi

April 5, 1937

Division A

1 INSURANCE.

Member of benefit insurance association held not entitled to recover, as part of agreed disability benefits of "one-half of the face of the certificate," one-half of amount provided elsewhere in certificate "for the erection of a monument to his memory," irrespective of whether in some cases association had included monument benefits in computing disability benefits, since such discrimination would be violative of statute (Code 1930, sec 5171).

2 INSURANCE.

Under statute prohibiting discrimination by life insurance companies in favor of individuals and subjecting company to revocation of license for such discrimination, promise of such discrimination is unenforceable (Code 1930, sec. 5171).

3. INSURANCE.

Where resolution of benefit association allocated to members certain dividend accumulations, denominated "paid-up insurance," but provided that such accumulations would be available only if member continued membership by payment of dues, member who collected disability benefits, which had effect of canceling membership, held not entitled to recover accumulations.

4. INSURANCE.

Member of benefit association who, in compliance with provision that member must continue to pay assessments until disability claim was actually paid, continued to pay assessments pending suit for disability benefits against the association held not entitled to recover such assessment payments after successful termination of the suit, since provision was reasonable and binding and intended for protection of insured.

HON. A. B. AMIS, SR., Chancellor.

APPEAL from chancy court of Scott county HON. A. B. AMIS, SR., Chancellor.

Suit by C. E. Waggoner against Sovereign Camp, W. O. W. From a decree for plaintiff, defendant appeals. Reversed and rendered.

Reversed and decree for appellant.

Eastland, Eastland & Ormond, of Forest, for appellant.

A judgment of a court having jurisdiction of the subject matter and the parties is res judicata of all questions which were necessarily involved, and which could have been presented, and not merely questions actually presented by the pleadings; and it is res judicata of all questions which might have been presented whether such questions were actually presented or not.

Dean v. Board of Sup'rs, DeSoto County, 135 Miss. 268, 99 So. 563; Burford v. Kersey, 48 Miss. 646; 34 C. J., pages 818, 909, par. 1236; National Life & Acc. Ins. Co. v. Prather, 161 So. 117; Venson v. Colonial Investment Co., 116 Miss. 59, 76 So. 827.

A party who has failed to assert and litigate a claim or allowance in a suit in which he might with propriety have done so, will not be permitted to litigate it in a second suit, unless Ms failure to do so in the first suit was caused by the fraud of his adversary and not by his own negligence.

State v. Morrison, 60 Miss. 74; Burford v. Kersey, 48 Miss. 642; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Gaines v. Kennedy, 48 Miss. 103.

The test of whether or not a claim should have and could have been litigated in the first suit is whether or not the proof necessary to support the claim in the first suit is necessary to support the claim in the second.

Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Harrison v. Turner, 116 Miss. 550, 77 So. 528.

The constitution and laws of a benefit society are binding upon it and upon alt its members, and may be considered as written into contracts between it and its members; and all amendments, changes, and additions made in or added to said constitution and laws of the order become at once the law of the order and of its members and the members are bound thereby provided said charges or amendments are reasonable and do not impair vested rights.

Odd Fellows Benefit Assn. v. Smith, 161 So. 115; Butler v. E. H. Columbian Woodmen, 116 Miss. 85, 76 So. 830; Newman v. Knights of Pythias, 110 Miss. 371, 70 So. 241; Sovereign Camp v. Woodruff, 80 Miss. 456, 32 So. 4.

A voluntary payment cannot be recovered back; and within the meaning of the rule a voluntary payment is a payment made, with compulsion or fraud, without any mistake of fact, of a demand which the payor does not owe, and which is not enforceable against him.

McLean v. Love, 157 So. 361; 48 C. J., sections 280-285; Town of Wesson v. Collins, 72 Miss. 855, 18 So. 360; J. H. Menge & Sons v. G. & S. I. R. R. Co., 53 So. 424, 97 Miss. 810; Bank of Belmont v. Judson, 108 So. 440; 2 Elliott on Contracts, page 630; Graham-McNeil Co. v. Scarborough, 99 So. 502.

Premiums voluntarily paid upon a policy of life insurance do not fall within the exception to the rule and cannot be recovered.

Aetna Life Ins. Co. v. Thomas, 144 So. 50; Featherstone v. Stonewall Life Ins. Co., 147 So. 305.

Money cannot be recovered on a mistake of fact if the other party cannot be put in status quo. If there must be a loss it must fall upon him whose negligence caused the mistake.

R. C. L., Payment, page 170.

If there are no such circumstances surrounding the payment as constitute sufficient compulsion in the eyes of the law in accordance with the principles laid down herein, the fact that the payment is made under the most solemn protest does not render it any the less voluntary; it does not impair in any respect the operative effect of the payment as a discharge of the demand on which it is made, so far as such demand is legal.

McLean v. Love, 175 So. 361; 21 R. C. L. 149, sec. 173.

A representation is not actionable unless actually false. The representation must be materially and substantially false, and must be acted upon by the bearer in the manner reasonably contemplated.

26 C. J. 1098, sec. 29; 21 R. C. L. 301, sec. 64.

Except where it may be regarded as continuing in character, the truth or falsity of a representation is generally to be determined as of the time when it was made and subsequent changes in the condition of affairs cannot affect the liability of the person who made it.

12 R. C. L. 303, sec. 64.

A party cannot be required to answer interrogatories not pertinent to the issue.

18 C. J., page 1102, sec. 81, and pages 1104, 1105; Thompson v. Richmond, 24 S.C. 366; Rosenberg v. People's Surety Co., 125 N.Y.S. 257; Smith v. Sisters of Good Shepard, 87 S.W. 1083; Lichtenheim v. Fisher, 39 N.Y. 553.

O. B. Triplett, Jr., of Forest, for appellee.

One-half of the monument benefit constituted a part of the total permanent disability benefit. Appellee was entitled to invoke the provisions of section 5171, Code of 1930. This code section was an integral part of the insurance contract.

Farmer v. Sov. Camp, W. O. W., 77 So. 655, 116 Miss. 626.

One-half of the so-called paid up insurance was also thus recoverable. It was dissimilar from ordinary paid up insurance.

37 C. J., page 364, sec. 11.

Appellant perpetrated fraud upon appellee in respect to these rights.

Restatement, Contracts, sections 471 and 472, pages 891 and 896; 26 C. J., sections 17, 18 and 19, pages 107478; Townsend v. Hurst, 37 Miss. 679.

Because of fraud the defense of res adjudicata was, therefore, unavailing.

State v. Morrison, 60 Miss. 74; Burford v. Kersey, 48 Miss. 642; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Gaines v. Kennedy, 48 Miss. 103; 34 C. J. 1245, page 836.

Because of fraud the defense of accord and satisfaction was equally unavailing.

Powell v. Plant, 23 So. 399; Clark v. Equitable Life Assur. Soc., 23 So. 453; Penn Mutual Life Ins. Co. v. Nunnery, 167 So. 416.

Premiums paid after submission of disability proofs were recoverable: (a) because a part thereof was paid under mistake and fraud.

Brotherhood of Railroad Trainmen v. Bridges, 144 So. 554, 164 Miss. 356; New York Life Ins. Co. v. Salmon, 157 So. 344, 171 Miss. 25; Featherstone v. Stonewall Life Ins. Co., 147 So. 305, 165 Miss. 164; Aetna Life Ins. Co. v. Thomas, 144 So. 50, 146 So. 134, 166 Miss. 53; Columbian Mutual Life Ins. Co. v. Gunn, 163 So. 454, 173 Miss. 897.

(b) Because the remainder was paid under compulsion and mistake.

Columbian Mut. Life Ins. Co. v. Gunn, 163 So. 454, 173 Miss. 897; Pacific Mut. Life Ins. Co. v. McCaskill, 170 So. 579.

(c) Because the doctrine of res adjudicata could not apply to them.

Hardy v. O'Pry, 59 So. 73, 102 Miss. 197; Harrison v. Turner, 77 So. 528, 116 Miss. 550.

(d) Because the right to sue therefor was expressly reserved in the release.

Argued orally by O. B. Triplett, Jr., for appellee.

OPINION

Cook, J.

In the fall of 1932 the appellee, C. E. Waggoner, wrote the appellant association a letter indicating his desire and purpose to apply for the total and permanent disability benefit provided in his insurance certificate in said association. Upon receipt of this letter the appellant forwarded the necessary blanks to enable the insured to make application for the disability benefits, with a letter stating that:

"In order to receive this benefit the member must make satisfactory proof of disability, and must continue the prompt payment of all monthly installments of his annual assessment until his disability claim is actually allowed and paid. Otherwise he will become suspended and his beneficiary certificate will become null and void.

"If the claim is allowed, the Total Disability Benefit amounts to one-half of the certificate less any indebtedness due the Association and the beneficiary certificate is thereby cancelled and membership in the Association terminates."

Appellee forwarded proofs of disability which were disallowed, and in June, 1934, he filed suit for $ 500 on the benefit provided by his certificate for total and permanent disability. This suit proceeded to judgment in circuit court and on appeal...