Butler v. Eminent Household of Columbian Woodmen , 116 Miss. 85 ( 1917 )

Holden, J.,

delivered the opinion of the court.

The appellant, Young D. Butler, sued the appellee in the circuit court of Hinds county to recover on a policy or beneficiary covenant of insurance for an alleged broken leg and from a judgment in favor of the appellee benevolent society the appellant brings this appeal here.

The agreed statement of facts is here set out:

“It is agreed by and between the parties, plaintiff ■ and defendant, to the above-styled suit, that the same be tried before the judge, a jury being waived, on the following agreed statement of facts, to wit:

“First. That for a valuable consideration, and for value received, upon the written application of the plaintiff there was issued to the plaintiff by the defendant, on the 7th day of December, A. D. 1905, a contract or policy of insurance, called a beneficiary covenant. A copy of said application, accepted by the defendant on or before the 7th day of December, A. D. 1905, is hereto attached as Exhibit A, and is a part here-of the same as if fully copied herein. A copy of said contract or policy of insurance, called a beneficiary covenant accepted by the plaintiff on the 7th day of December, A. D. 1905, is hereto attached as Exhibit B, and is a part here-of the same as if fully copied herein.

“Second. That the plaintiff from the issuance of said contract or policy of insurance, called a beneficiary covenant, has made all payments and performed all things required of him, to keep said contract or policy of insurance, called a beneficiary covenant, in full force and effect, and the said contract or policy of insurance, called a beneficiary covenant, has been in full force and effect, and said plaintiff, as called in said policy or covenant, a worthy guest of the defendant order, in good standing, from the issuance of said policy or covenant, until now, and said policy or covenant was in full force and effect, and plaintiff said worthy guest in good standing, on the 25th day of November, A. D. 1915.

“Third. That at 1 o’clock a. m. on the said 25th day of November, A. D. 1915, while said policy or covenant was in full force and effect, and plaintiff said worthy guest in good standing, plaintiff was also a guest of the Rainey Hotel in the town of New Albany, Miss., which had caught on fire, and from which plaintiff, at said hour, only escaped with his life from a death by fire by means of an improvised rope of bed clothing let down by him from the window of the room occupied by him on the third floor of the said hotel, but which rope lacked ■ twenty (20) feet of reaching the ground, and from the end of which plaintiff fell to the ground, thereby accidently breaking the two bones called os calcis and astragalus, of his left lower limb, being the two bones just below'the ankle joint, and joining the ankle with the bones below, from which plaintiff was laid up for many weeks with the injured part in a plaster of paris splint.

“Fourth. That there is attached hereto as Exhibit 0 and made a part hereof the same as if fully copied herein, a copy of the constitution and by-laws of the defendant order in force and effect at the time of the issuance of this policy or-covenant, and still in force and effect so far as this suit is concerned, unless superseded by the new constitution and by-laws promulgated by the defendant order in December, 1913, and the amendments therto, promulgated by the defendant order in December, 1914.

“Fifth. That there is attached hereto as Exhibit D, and made a part hereof, the same as if fully copied herein, a copy of said constitution and by-laws promulgated by defendant order as aforesaid in December, 1913, and the amendments thereto, promulgated by defendant order -as aforesaid in December, 1914.

“Sixth. That plaintiff consented to no change either in the constitution or the by-laws of the defendant order affecting his rights and benefits as expressed in the said policy or covenant, unless by the terms and provisions of said policy or covenant itself, by reason of Ms acceptance of said policy or covenant.

“Seventh. That if plaintiff’s policy or covenant aforesaid covers the aforesaid injury then satisfactory and due proof thereof was made to the defendant order by plaintiff.

“Eight. That plaintiff has never been paid anything by the defendant order by reason of or on account of said injury, but the defendant order has refused to pay plaintiff anything by reason of said injury, denying liability to plaintiff in the premises.”

The policy sued upon was issued to the appellant in 1905, and contains the usual clause in such fraternal insurance policies, ‘ ‘ executed in consideration of the warranties made in the application of this guest and of compliance on the part of this guest with the constitution and by-laws of this fraternity, now existing, or as hereafter legally amended all of which and the application of this guest are a part of this covenant.” The application for the insurance made by the appellant contained the same provision; that is, that the insured should be bound not only by the constitution and by-laws of the society as it existed at the date of the execution of the insurance covenant, but should be bound by the constitution and bylaws of the society which should thereafter be legally amended.

At the date of the issuance of the beneficiary covenant herein, in 1905, the covenant or contract of insurance and the” constitution and by-laws provided that the beneficiary should receive two hundred dollars in the event of broken arm or broken leg. Subsequently, in the month of December, 1914, the above provision of the constitution of the society was amended to read as follows:

“Should the holder of a beneficiary covenant in good standing suffer the complete fracture of the arm at either extremity, or the shaft, or in the event of the complete fracture of one or both bones of the forearm, either at the extremities or the shaft, or in the event of the complete fracture of the thigh, involving, either the upper or lower extremity, or the shaft of the hone, or in case of the complete fracture of either or both bones of the lower leg {tibia, or shin bone or fibula), at either extremity or along the center, or in the event of the complete fracture of the kneecap, there shall be paid one hundred dollars. ’ ’

It will be observed that the appellant beneficiary was injured in November, 1915, and that the injury was the fracture of two small bones of his foot, the os calcis and astragalus, the two bones just below the ankle joint for which injury this suit is brought. It also appears that he had continued to pay the premiums or dues on the policy without protest after the amendment to the constitution and by-laws was made by the society in December, 1914.

• The appellant bases his claim here on the ground that the two small bones in his foot which were broken constitutes “a broken leg.” and is covered by the policy arid laws of the society in force iri 1905, under the provision, “in the event of broken arm or broken leg,” in the policy, and that the amendment or change in the by-laws and constitution made by the society in 1914 is illegal and void, and not binding upon him, and that the claim is valid under the covenant and laws of the society existing at the time the- policy was issued.

It is unnecessary to consider and discuss but one question presented by this record in order to reach a decision of the controversy, and that is. whether or not the change or amendment- to the constitution and by-laws of the appellee fraternal society made in December, 1914, which changed the provision of benefit “in the event of broken-leg” to the provision of benefit “in the-event’of the complete fracture of the thigh or of either bones of the lower leg {tibia, or shin bone, or fibula), or in the event of the complete fracture of the kneecap,” wg,s reasonable. In other words, under the terms of the policy and the constitution and by-laws of the society in 1905, when the policy was issued, the beneficiary could recover in the event of a “broken leg,” which provision the appellant contends here would include any bone from the thigh down to and including the toes of the foot. The amendment to the by-laws and constitution of the society made in 1914 expressly defines what is meant, and specifically names the bones of the leg, the fracture of which entitles the insured to the benefit, and states what is included in the insurance risk, and that is,' in effect, that the meaning of “broken leg” is the fracture of one of the bones of the lower leg or tibia, or the kneecap, or the thigh, but does not include the bones of the feet.

The appellant urges, and cites some authority holding, that the leg means any of the bones from the thigh down to the toes, but it appears from other authority and the common definition of “leg,” that it does not include the foot nor any of the bones of the foot. However, if the bones of the foot should be included in the meaning of the word “leg,” still we do not think that the fracture here of the two small bones of the foot comes within the beneficial terms of the policy, for the plain reason that the provision of the constitution and by-laws of the society, as changed and amended in December, 1914, expressly and definitely defines and names what bones of the body shall be considered the leg, and plainly provides for what fractures of the bones of the leg the beneficiary may recover. It is argued in the brief of the appellant that this amendment of the constitution and by-laws of the society is void and not binding upon the appellant because the amendment is unreasonable and.impairs or destroys a vested right of the appellant under the contract of insurance.

This character of insurance contract in a mutual benefit society which provides that the insurance is granted by the society to the member with the distinct provision that the rights and benefits shall be subject to and be governed by the constitution and by-laws of this fraternal society existing when the policy issued or that may thereafter be adopted or amended by the society before the injury occurs, certainly permits any reasonable change in the rights and benefits under the covenant by amendment or adoption of laws of .the society which might increase or decrease the dues and assessments, or define an ambiguous term in the covenant, or reasonably reduce the benefits, and such change in the laws of the society is valid, if reasonable, and is to be read into the ' contract as if written therein.

We are called upon here to pass upon the question of whether the amendment or chaiige in this case made in the constitution and by-laws of the society in December, 1914, impaired a vested right or was void on account of being unreasonable. We do not think the change or amendment of the laws of the society made in December, 1914, was unreasonable, but on the contrary the change was reasonable, and probably wise and necessary, and was fully authorized by the laws of the society and the covenant of insurance, which expressly govern and determine the measure of the rights of the appellant under the beneficiary policy issued in this case. This rule of law is sustained by the best authority on the subject. Ross v. Modern Brotherhood of America, 120 Iowa, 692, 95 N. W. 207, and the authorities there cited; Newman v. Supreme Lodge K. of P., 110 Miss. 371, 70 So. 241, L. R. A. 1916C, 1051; Supreme Lodge K. of P. v. Mims, 241 U. S. 574, 36 Sup. Ct. 702, 60 L. Ed. 1179, L. R. A. 1916F, 919; Sovereign Camp W. W. v. Woodruff, 80 Miss. 546, 32 So. 4; Supreme Commandry v. Ainsworth, 71 Ala. 449, 46 Am. Rep. 332; Gilmore v. Knights of Columbus, 77 Conn. 58, 58 Atl. 223, 107 Am. St. Rep. 17, 1 Ann. Cas. 715; Fullenwider v. Supreme Council, etc., 180 Ill. 621, 54 N. E. 485, 72 Am. St. Rep. 239; Norton v. Catholic Order etc., 138 Iowa, 464, 114 N. W. 893, 24 L. R. A. (N. S.) 1030; Kirk v. Fraternal Aid Ass’n, 95 Kan. 707, 140 Pac. 400; Ury v. Modern Woodmen of America, 149 Iowa, 706, 127 N. W. 665; Uhl v. Life & Annuity Ass’n, 97 Kan. 422, 155 Pac. 926; Wright v. Minn. Mut. Life Co., 193 U. S. 657, 24 Sup. Ct. 549, 48 L. Ed. 832. The authorities cited in these cases thoroughly discuss the question here involved, and sustain our holding above. Now, we conceded above for the purpose of the discussion that the change in the laws of the society was. a material change in the benefits of the policy because it excluded any benefit for injury to bones in the foot, and that recovery might have been had for such injuries to bones in the foot before the change in the laws of the society was made in 1914, and we holding that such change was reasonable and valid and binding upon the appellant beneficiary herein. But as a matter of fact we are unable to say that the amendment of the laws of the society in December, 1914, really changed the benefits of the policy, or that it did not merely define what was meant by the original provision of “broken leg” of 1905. That is, the change made in the laws of the society in 1914 seems to have simply declared in unambiguous terms what was and is, meant by the word “leg” in the policy, and that the fracture of the leg did not and does not mean the fracture of a small bone in the foot, which fracture is the básis of this suit. Ross v. Modern Brotherhood of America, supra. Defining what an ambiguous provision in the insurance policy means, may not necessarily result in changing or reducing or eliminating a material benefit therein. We do not say here that it was even necessary that the meaning of “leg” should have been expressly defined by the laws of the society, because it may be that the “leg” does not include the foot, toes, nor any of the bones of the foot, and if that be true, the appellant here could in no event have recovered under the contract of insurance in this case, because at no time 'did. his covenant of insurance specifically provide a benefit for the fracture of any bone in his foot, consequently such fracture must have been of one of the bones of the leg in order that he should receive the benefit named in the insurance policy. But we do not pass upon this question.

It follows from the above conclusions that the appellant was deprived of no vested right under the insurance policy on account of the change or amendment in the constitution and "by-laws of the society made in December, 1904. Ross v. Modern Brotherhood of America, supra. We think the principle involved in the case before us is the same as that in the Newman v. Supreme Lodge K. of P., supra, and the able opinion of Special Justice Campbell in that case is good authority, and splendidly covers the field on the particular subject.

It will be borne in mind in the instant case that the appellant was a member of the appellee mutual insurance society, and as such may have participated, directly or indirectly, in changing or amending its constitution and by-laws, and may have been charged under its laws with knowledge of amendments and changes made which affected his covenant of insurance; and it appearing that he continued to pay his premiums or dues in the society for the insurance furnished him after the constitution and laws of the society had been changed in December, 1914, he may have expressly or impliedly ratified the change made in the policy about which he now complains. But we do not pass upon these questions now because it is unnecessary to do so in view of the conclusion reached above.

The judgment of the lower court is affirmed.

Affirmed.