Independent Order of Sons & Daughters of Jacob of America v. Moncrief , 96 Miss. 419 ( 1909 )

Mates, J.,

delivered tbe opinion of tbe court.

Tbe bill in this case wholly fails to state, any cause of action, and tbe demurrer should have been sustained. Tbe constitution and by-laws of tbe order constitute a part of tbe bill, of complaint by express allegations of tbe bill. Thus it is alleged tbat tbe liabiity of tbe order became fixed by sections 1, 2, 3, 4, and 5 of article 4 of tbe by-laws, and various other references are made to tbe constitution and by-laws in tbe complaint. It is expressly requested, as a part of tbe bill, by reason of tbe fact tbat tbe complainant bas been unable to obtain a copy to file as an exbibit to tbe bill, tbat defendant be required to file a copy of tbe by-laws, and tbat same be made a part of tbe bill. And yet counsel for appellee argue, after this part of tbe prayer bas been complied witb, and tbe constitution and by-laws filed, tbat tbe court bas no right to consider same on this demurrer. There is nothing in this argument. These by-laws are as much a part of this bill, in tbe case as it now stands, as if they bad been actually copied into tbe face of tbe bill. When we examine these bylaws, we see tbat tbe failure to pay dues by members of tbe order forfeits tbe membership; and when we examine tbe bill, it shows tbat Adaline Moncrief did not pay her dues from July, 1907, to December, 1907, tbe last date being tbe date of her death. Thus it is that on tbe face of tbe bill it is shown tbat tbe insured was not a member of tbe order when she died, and therefore not entitled to insurance, unless there was some excusable reason for this failure to pay tbe dues, and made excusable under the constitution and by-laws of tbe order. ;

Tbe excuse offered in tbe bill for tbe nonpayment of tbe dues is tbat Adaline Moncrief was sick, and because she was sick became entitled to a sick benefit, and tbat it was tbe duty of tbe lodge to pay tbe dues out of this sick benefit, sending to tbe sick member only tbe surplus, after retaining all dues tbat might be owing; but, when tbe constitution and by-laws are examined, it will be seen tbat tbe order does not agree to pay to all parties who are sick a benefit. Tbe lodge can provide a sick benefit for a sick member, but tbe lodge does not agree, absolutely, to allow every sick member a benefit; but a member becomes entitled to a benefit on two conditions, namely, that be is sick, and, secondly, after be is sick, that tbe lodge take further action and vote tbe member an allowance. Tbe lodge bad made no allowance in this ease, and it is expressly so alleged in tbe bill, and until tbe allowance bad been made there was no obligation on tbe part of tbe lodge to pay anything.

Demurrer sustained, decree reversed and cause remanded.

Reversed.