Sovereign Camp Woodmen of World v. Woodruff

• Decision Date: 19 May 1902
• Citation: 80 Miss. 546,32 So. 4
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. JULIA L. WOODRUFF

32 So. 4

80 Miss. 546

SOVEREIGN CAMP WOODMEN OF THE WORLD v. JULIA L. WOODRUFF

Supreme Court of Mississippi

May 19, 1902

FROM the circuit court of, second district, Bolivar county. HON F. A. MONTGOMERY, Special Judge.

Mrs Woodruff, appellant, was plaintiff in the court below; the Sovereign Camp Woodmen of the World was defendant there. The plaintiff recovered a judgment for $ 3,100, with interest including the $ 100 monument fund, and the defendant appealed to the supreme court. The opinion states the case.

Affirmed.

Fontaine Jones, for appellant.

The crucial point presented for decision is whether the appellant waived the right to contest the payment of the amount named in the certificate, and plead in defense of an action thereon the express agreement of said Woodruff, the member, contained in his application for membership to the order.

But for the change in applications made subsequent to the issuance of Woodruff's certificate, there can be no doubt that the death of Woodruff, as a result of smallpox, avoided recovery upon his certificate. Independent of the testimony of Dr McCalip, the proofs of death presented to appellant, containing the physician's certificate of death, offered in evidence by appellant, unquestionably establish the fact that Woodruff's death resulted from smallpox, and the authorities are numerous holding that such proofs are prima facie evidence of the facts stated therein, and are admissible as against the insured and in behalf of appellant. Mutual L. Ins. Co. v. Newton, 22 Wall. (U. S.), 32, 19 Am. & Eng. Enc. Law (2d ed.), 107; Cluff v. Mutual Benefit L. Ins. Co., 99 Mass. 317; Hanna v. Conn. Mut. Ins. Co., 150 N.Y. 526; Aetna L. Ins. Co. v. Ward, 140 U.S. 76.

The application is to be construed as a part of the contract. Kelly v. Life Ins. Co., 113 Ala. 453; Northwestern Benev. Assn. v. Hand, 29 Ill.App. 73; Kennedy v. St. Lawrence County Mut. Ins. Co., 10 Barber (N. Y.), 285; 16 Am. & Eng. Enc. Law (2d ed.), 868, and cases cited in note 4.

As an abstract proposition, it is indisputably true that the by-laws of a mutual insurance company are a part of the insurance contract; but this principle fails of application when invoked by appellee in her effort to avoid the agreement of the insured as to vaccination and death by smallpox contained in his application.

There is nothing in the record to indicate that the stipulations and agreements contained in former applications in reference to vaccination and death by smallpox were in anywise waived or abrogated; and there is no limitation upon the power of the Sovereign Commander to prescribe a certain form of application for one person and a different form for another. The application and certificate constitute the contract. Covenant Mut. L. Ins. Co. v. Tuttle, 87 Ill.App. 309; Drum v. Benton, 13 App. D. C., 245; McCoy v. Assn., 47 L. R. A., 681, and cases cited above.

Can it be said of a man who dies of smallpox that he had been successfully vaccinated? It is common knowledge that a vaccinated person may contract varioloid, which is seldom or never fatal; but it is generally supposed that a successfully vaccinated person is immune from smallpox.

J. W. Cutter, for appellee.

No person can read the questions propounded in the two forms of application, without the same idea being thereby suggested to his mind, that all that the insurer desired to accomplish thereby, was that until after vaccination should be successfully effected, the society would not insure against death from smallpox; but that after such vaccination the insurance would become effective to protect against death from that cause equally with all others.

It seems, however, that all questions should be set at rest, because the fact appears affirmatively in the record, that the insured had been successfully vaccinated before he contracted the disease from which he died; appellant after the issuance of the certificate to the insured, and before his death, having changed the form of application which it required to be made by applicants for insurance, so that a certificate would not be void, provided the insured was successfully insured before contracting a fatal case of smallpox.

The certificate, on its face, provided that it was issued subjeer to the conditions named in the constitution and by-laws of the society, now in force, or that may hereafter be enacted by the sovereign camp.

The constitution and by-laws of appellant were amended subsequent to the issuance of the certificate sued on; and under the new laws of appellant the form of application was changed as has been shown in the abstract of facts. Bacon on Ben. Soc., sec. 321.

The beneficiary named in the certificate must, therefore, be entitled to receive the benefit arising from the change in the form of its application and contract insurance, prescribed by the sovereign officers or camp. These changes are binding where they work a hardship upon a member or its beneficiary, and they are, therefore, equally binding upon the society where the change operates for the benefit of the member. This doctrine is supported by the following authorities: Bacon on Ben. Soc., secs. 185-188; Knights of Pythias v. LaMalta, 95 Tenn. 157; see, also, 30 L. R. A., 838; Knights of Pythias v. Stein, 75 Miss. 107; Dornes v. Knights of Pythias, 75 Miss. 466.

In the case under discussion the insured expressly contracted in his application and certificate to be bound by all the laws then in force, as well as those which might thereafter be enacted, and this provision, of course, must be held to be equally binding upon the appellant, under the facts of the case, which are, that the insured had been successfully vaccinated prior to contracting the disease from which his demise.

Sillers & Owen, on same side.

Appellee contends that the questions and answers when taken together mean nothing more or less than if the insured should die of smallpox before being successfully vaccinated, he would waive his rights under the policy. We think it clear that the questions and answers in the first application meant nothing more or less than what is read in the changed application. Evidently the insured construed it so, and we think it the reasonable interpretation to be placed upon the two questions. If he had been successfully vaccinated when he made his application, there would have been no necessity for asking the second question. If then, he was vaccinated before his death, and he had removed all of the objections that could have been made when he became a member of the order, and under the laws which holds these policies must be liberally construed in favor of the insured, and the policy upheld, if possible, under a reasonable interpretation of the language, we think even if the death was the result of smallpox, the appellee could recover. Bacon on Ben. Soc., secs. 179, 180.

Conceding for the sake of argument, that death resulted from smallpox, that the questions and answers were to be construed literally as a warranty that they are a part of the policy, still appellee is entitled to recover, because, as shown by the evidence, the form of this application was changed subsequently to Woodruff's becoming a member, and before his death occurred, and the change affected all of the benefit certificates then in existence, because the laws governing these societies make any change or alteration made in the constitution or bylaws effect all of the benefit certificates. This beneficiary certificate reads as follows: "That the certificate is...