Weiditschka v. Supreme Tent Knights of Maccabees of the World

Ladd, C. J. A certificate of membership was issued to William Nuhn, January 16, 1905, by the defendant, a fraternal beneficiary association, organized under the laws of Michigan. Its funds are raised by assessment. It is managed for the benefit of its members, and not for profit. The beneficiary named in the certificate was Lillian I. Ingalls, a dependent, not related in any way to the assured. Upon the death of Nuhn, May 24, 1913-, proofs of loss were submitted, and the association paid the stipulated indemnity to the beneficiary named. W. Weiditschka was appointed administrator of decedent’s estate, June 27th following. This suit for such indemnity was begun March 19, 1914, by the administrator of decedent’s estate, and is met with several objections to recovery. l. insurance : what law governs. I. The association has a lodge system,, with ritualistic form of work. Nuhn applied to a local lodge at Waverly, Iowa, known as Waverly Tent No. 2, for membership, and the application was mailed by its officers to the head officers of the association in Michigan, by whom it was accepted, and the certificate of membership issued and mailed to the record-keeper of Waverly Tent No. 2, and by him coun [186] tersigned, and then delivered to Nuhn. Thereupon, the latter was initiated into the association by the local lodge, paid the fee asked therefor, and his first assessment. Contrary to appellant’s contention, the contract of insurance so consummated is governed by the laws of Iowa, rather than those of Michigan. The recent cases are quite in accord in holding that the place where the final act occurs which makes, the insurance binding is the place of the contract, and that the validity and construction of the contract are, therefore, to be determined by the laws of that place. Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234 (56 L. Ed. 419) ; Haas v. Mutual Life Ins. Co., 90 Neb. 808 (Ann. Cas. 1913 B. 919, with cases collected at page 926); Wilde v. Wilde, 209 Mass. 205 (95 N. E. 295). See Collver v. Modern Woodmen, 154 Iowa 615, as to agency of the officers of local lodge in such a case. Nothing in Bush v. Modern Woodmen of America, 182 Iowa 515, is in conflict with the above. The question under consideration was not involved in that case. II. It is argued, however, that the .decision we reach would violate the clause of the Constitution exacting that: “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Section 1, Art. IV, Constitution of the United States. LAwS-ra“fun°NAL credit”nciause. Nothing in violation of this clause can be inferred from a decision that the contract is governed by the laws of the state where made, rather than where one of the parties was organized and has its chief place of business, nor enforcing that contract by compelling compliance therewith by payment to the person entitled thereto, even though the amount has been turned over to another. [187] 3. Insurance : prohibited beneficiary : foreign company. [186] The defendant association had no right to transact business in this state without permission, and even then was [187] bound to proceed in accordance with its laws. Nelson v. Nederland Life Ins. Co., 110 Iowa 600; American Fid. Co. v. Bleakley, 157 Iowa 442; New York L. Ins. Co. v. Cravens, 178 U. S. 389 (44 L. Ed. 1116). In the last named case, the court said: “The power of the state over foreign corporations is not less than the power of a state over domestic corporations. No case declares otherwise. We said in Orient Ins. Co. v. Daggs, supra: ‘That which a state may do with corporations of its own creation, it may do with foreign corporations admitted into the state. This seems to be denied ; if not generally, at least as to plaintiff in error. The denial is extreme, and cannot be maintained. The power of a state to impose conditions upon foreign corporations is certainly as extensive as the power over domestic corporations, and is fully explained in Hooper v. California, 155 U. S. 648.’ ” In American Fidelity Co. v. Bleakley, 157 Iowa 442, we said: “The appellant’s claim that the policy in question should issue because of interstate comity cannot be sustained. The state has the undoubted right to say whether foreign corporations shall be permitted to do business here at all, and, if such permission is granted, it may be upon such terms and conditions as the state shall prescribe. And where it is the manifest intention to limit or restrict the powers given to such corporation by its charter, courts have no authority to override such legislation on the ground of comity between the states. Within its power, the state, through its legislature, is supreme, and the court’s duty is ended when it determines what the statutory law is.” See, also, Frick v. Hartford Life Ins. Co., 179 Iowa 149. Nor can an infraction of the Fourteenth Amendment to the Constitution of the United States be said to be involved [188] in compelling an insurance association to pay the stipulated indemnity to those entitled thereto, even though payment has been made to another not lawfully entitled thereto. III. Section 1882 of the Code Supplement, 1913, in addition to prescribing conditions on which associations like defendant may transact business in this state, declares that: “If the auditor of state shall approve the articles and also the by-laws or rules, he shall issue to the society, order or association a permit in writing, authorizing it to transact business within this state for a period of one year from the first day of April of the year of its issue. Societies, orders or associations not organized under the laws of this state, in addition to the requirements of the provisions of Section 1829 of the Code, must also comply with all of the provisions of this chapter, except as to the residence of membership.” Section 1824 of the Code forms a part of this, chapter and provides that: “No fraternal association created or organized under the provisions of this chapter shall issue any certificate of membership to any person under the age of fifteen years, nor over the age of sixty-five years, nor unless the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir or legatee of such member.” Appellant argues that the former section has no application to the latter, but applies only to the general provisions having reference to foreign companies, and bases its argument largely on the legislative construction. The language quoted, however, is too plain to permit of any doubt ; for the requirements are in addition to Section 1829 of the Code, and exact compliance, not with part, but “with all of the provisions of this chapter, except as to the residence of membership.” The language could not well be plainer; and, as the subsequent acts of the legislature are not in [189] consistent with the exaction of obedience to Section 1824, we have no trouble in reaching the conclusion that foreign associations admitted to do business are bound by Section 1824 of the Code. i. insurance : ficiary: insurer as beneficiary. . IV. One of defendant’s by-laws provides for payment of every loss under the certificate to a dependent, and that, “if the designation of beneficiary shall fail, for illegality or otherwise, the benefit shall revert to the Life Benefit Fund.” As contended by appellant, the members of such an association, ns well as their heirs, are bound by its bylaws, if valid. Ross v. Modern B. of A., 120 Iowa 692; Boeck v. Modern Woodmen, 162 Iowa 159; Roeh v. Business Men’s Prot. Assn., 164 Iowa 199; Elliott v. Home Mutual Hail Assn., 160 Iowa 105. Possibly, where there is no provision to the contrary, the indemnity may be made payable to someone other than those defined by a statute. See Grand Lodge A. O. U. W. v. Cleghorn, (Tex.) 42 S. W. 1043. Section 1824 of the Code excludes any not named therein, by declaring that: “No fraternal association created or organized under the provisions of this chapter shall issue any certificate of membership to any person, * * * unless the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir or legatee of such member.” As no such certificate shall be issued to the beneficiary other than of the classes named, designating a dependent as such, or even the association, would seem to be prohibited. See Smith v. Supreme Tent, Knights of Maccabees, 127 Iowa 115, where Section 1824 of the Code was construed in ascertaining whether the beneficiary named in a certificate issued by this same association was entitled to the indemnity promised. [190] Indemnity ' snred°s estate. [189] Lillian Ingalls was not connected with the insured otherwise than as a dependent, and therefore her designation [190] as beneficiary was illegal. It is argued, however, that the company is not liable, for that, under such circumstances, the by-law declares that “the benefit shall revert to the Life Benefit Fund.” This is tantamount to naming the associa tion as the beneficiary. The indemnity, under these circumstances, would be distributed to all the members of the association, and be made use of in meeting losses instead of assessments collected. To make the association a beneficiary is quite as inconsistent with the provisions of Section 1824 of the Code as the designation of a dependent. In this state, the rule has long ^een established, that, in event of some omission or illegality in the designation of a beneficiary, as exacted by the statute, the benefit or indemnity will pass to the estate of the assured. Schmidt v. Northern Life Assn., 112 Iowa 41; Oliphant v. American Health & Acc. Assn., 147 Iowa 656. In Boeck v. Modern Woodmen, supra, the place of the contract only was involved. 6' abatement of or^ontinu-anee (?) Y. The defendant, by way of amendment to the amended and substituted answer, pleaded in bar that the heirs of the insured were residents and citizens of Germany, and therefore that the court erred in continuing the cause; that, instead, the action should have been abated. The action was begun March 19, 1914, and this amendment was not filed until September 25, 1917; and the issue is whether, in such a situation, the action should be abated, or should be continued until the termination of hostilities between this country and the empire of Germany. There is no controversy but that the heirs are alien enemies, of a character which precludes prosecution of action in our courts; for they reside in and are citizens of Germany. Though it is often said by the law writers that an alien enemy cannot sue, for that to permit a recovery would strengthen and aid, in [191] resources, the hostile government, and thereby weaken our own resources, this depends somewhat on other considerations, as place of residence and rights accorded resident alien enemies by our government. The test of the right to sue which generally obtains is residence, rather than nationality ; the location of the alien enemy, and not the fact that he is such. See Wells v. William, 1 Lord Raym. 282; Clarke v. Morey, 10 Johns. (N. Y.) 69, 70; Porter v. Freudenberg, 1 K. B. (1915) 857 (Ann. Cas. 1917 C. 215). See, also, an article in the Yale Law Journal of December, 1917, and notes to Daimler Co. v. Continental Tyre & Rub. Co., Ann. Cas. 1917 C. 170, 193. The learning on the subject appears in these cases, and leaves no doubt as to the fact that the heirs of the assured, at least, might not prosecute an action in the courts of this country. It will be observed, however, that the suit was begun about three years before the government of the United States was engaged in war with Germany. The administrator, who was a citizen of this country, undoubtedly acted in a representative capacity, and, in prosecuting the action and in recovering the insurance indemnity, if this happened, necessarily acted in a trust capacity for those ultimately entitled to the proceeds. In this situation, there would seem to be no good reason for postponing the suit; for whatever might be recovered necessarily would lodge in the hands of the administrator. That officer is under the control of the court, and might very well be directed to retain the funds, for distribution after the termination of the war. See Krachanake v. Acme Mfg. Co., 175 N. C. 435 (95 S. E. 851, 852) ; Birge-Forbes v. Heye, 248 Fed. 636. The object is not to defeat the alien enemy of his right to recover whatever may be owed to him, nor to shield the citizen from the enforcement of his just obligations, but to obviate the deriving of any advantage by the enemy, directly or indirectly, pending hostilities. These reasons have [192] persuaded many courts to postpone, rather than abate, actions begun before the countries were engaged in war. That such a defense may be either temporary or final. appears from Schmitz v. Van Der Veen & Co., 112 L. T. N. S. (Eng.) 991: “In the first place, an alien enemy cannot maintain an action in our courts, not because his enemy character constitutes a defense to his claim, but because it deprives him of locus standi. He is, while that character lasts, under a temporary disability to sue. Yet the cause of action, if otherwise good, is unaffected. But secondly, in some cases the enemy character does affect the cause of action, as where it is upon an insurance of enemy ships or goods. It being the object of the Crown to destroy the commerce of the enemy, a contract to indemnify him against such loss 'is or becomes illegal, and there is no cause of action. In such a case, even if the broker, a British subject, sues, and the policy was underwritten before the war, the action still fails, and fails finally, not bfecause the beneficiary is an enemy, but because the cause of action is bad. * * * It is essential to distinguish carefully between these two cases, i. e., that where the cause of action is unexceptionable, but the plaintiff, as an alien enemy, is temporarily and personally incapable of being received as a plaintiff, and that where the cause of action, whoever puts it forward, fails in itself, and fails finally. It cannot be put more clearly than in the words of Lord Ellenborough, in Flindt v. Waters, 15 East 260: ‘The defense of alien enemy must be accommodated to the nature of the transaction out of which it arises; it may go to the contract itself on which the plaintiff sues, and operate as a perpetual bar; or the objection may, as in a case of this sort, be merely personal in respect to the capacity of the party to sue upon it.’ ” Though there are some cases which hold that, where a person, after bringing action, becomes an alien enemy, he [193] will be barred from further maintaining the action, the better view seems to be that the proceedings will be stayed merely, and not dismissed, unless the action itself ought not to be maintained. The authorities are well reviewed in Luczycki v. Spanish River Pulp, etc., 34 Ont. L. Rep. 549, and the conclusion reached that where, during the action, the plaintiff becomes an alien enemy, the litigation will merely be suspended, because of the temporary incapacity of the plaintiff to go on with the action, and that it will remain in abeyance until the impediment be removed by the close of the war. See note to Daimler Co. v. Continental Tyre, etc., Co., Ann. Cas. 1917 C. 170, at page 207; Taylor v. Albion Lbr. Co., 176 Cal. 347 (168 Pac. 348) ; Krachanake v. Acme Mfg. Co., supra; Levine v. Taylor, 12 Mass. 8; Bell v. Chapman, 10 Johns. (N. Y.) 183. A different view prevailed in Howes, etc., Co. v. Chester & Co., 33 Ga. 89; but the authority of that case is considerably impaired, since it turned out that there was no alien enemy involved. Texas v. White, 7 Wall. 700 (19 L. Ed. 227). As pointed out by Judge Speer, in Plettenberg, Holthaus & Co. v. Kalmon & Co., 241 Fed. 605, the opinion must be regarded as academic. Quoting from Judge Speer: “With the evolution of law, the courts of the English-speaking peoples exhibit greater magnanimity in affording opportunity of redress to alien enemies. Notwithstanding a ruling of Sir William Scott, afterwards Lord Stowell, made in 1799, to the contrary, the British prize courts of today hear any alien enemy asserting rights under a convention of the Hague Peace Conference. Shall the courts of the United States then, wholly deny a hearing to one not such when he here sought redress, but who has since become an alien enemy? To do this would not, in my judgment, accord with the spirit of our institutions, nor with the spirit of our government, which disclaimed hostilities to [194] tbe German people when it proclaimed war in defense of freedom and of a common humanity.” Circuit Judge Buffington, in Kaiser Wilhelm II., 246 Fed. 786, after reviewing the facts of the case, remarked that it called “for. the exercise of that range of discretion” peculiar to the court of admiralty, and that this would be— “An order which will make due provision for, first, giving the German citizen and belligerent an opportunity to litigate his’ rights, if relations with his country are hereafter resumed; second, providing for adjudging, if the government hereafter so desires, its rights and liabilities, if any, in taking over libeled property of the German subject; third, adjudging hereafter what effect the taking of this ship by the government had on the claim of the British lienor, and the further obligation of the German vessel owner, as between themselves. In following this course, and protecting the unprotected rights of an absent German citizen while this country is at war with the imperial government of its country, we are impelled by three all-sufficient reasons: First, the innate sense of fairness, decency, and justice which respects the rights of an enemy; second, the broad principles of international intercourse, which lead courts and nations that believe in international rights to be the more careful to observe them toward belligerents; and lastly, because the awarding to this German citizen, with whom our country is at war, the careful preservation until times of peace of its rights, is in line with those high ideals of Anglo-Saxon justice which led the British courts years ago, in Re Boussmaker, 13 Vesey 71, decided in 1806, to allow the claim of an alien enemy to be proved in time of war, and the dividends held by the British court until peace. Indeed, the fact that our country is now at war with Germany is all the more reason why this court should most scrupulously award to this German citizen those interna [195] tional and equitable rights which, no fair-minded people ever deny, even to their enemies in times of war.” On principle and authority, then, we reach the conclusion that the court did not err against the appellant in overruling the plea involved, and postponing the further hearing of the cause until the termination of the war. The plaintiff did not appeal; and therefore we have no occasion to decide whether the plaintiff might well have been permitted to go on with the case, and the court retain whatever might be recovered in the hands of the administrator until peace should be restored. — Affirmed. Evans, Preston, and Salinger, JJ., concur.