Masonic Benefit Ass'n v. Hoskins

Whitfield, 0. We think the testimony offered to prove the by-laws, and the constitution of this order by the witness Kelley was rightly held incompetent by the court below. Herman v. Supreme Lodge K. of P., 66 N. J. Law 77, 48 Atl. 1000; Page v. Knights & Ladies (Tenn.), 61 S. W. 1068. But, under the peculiar circumstances of this case, we think, if that were controlling, that the chancellor should have remanded the case and permitted competent proof to be taken. But we'think the chancellor was further correct in holding that, if the constitution and by-laws had been properly proven, the plaintiff was still entitled to recover on the case made by the record. The provision of the certificate on which the defendánt relied as showing that Morris Hoskins, the insured, was bound by these by-laws, is in these words: “Any failure to comply strictly with the laws and regulations of the M. B. A. as prescribed by the aforesaid Brand Lodge causes forfeiture of the membership represented by this certificate.” It is perfectly obvious that this provision in the contract does not at all expressly provide that Morris Hoskins should be bound by all by-laws and regulations then in force or thereafter to be enacted. The rule of construction in cases of this kind is set out in Morgan v. Independent Order, 90 Miss. 864, 44 South. 791, where the court says: The court cannot overlook the fact that associations of the character now before the court largely deal with the illiterate and ignorant. The by-laws consist of a multiplicity of rules and regulations in a volume composing a small book. A correct interpretation of [821] their meaning often puzzles the astute. Is it, then, a matter of wonder that courts .construe their contracts most favorable to the insured'? This court has said in Murphy v. Independent Order, etc., 77 Miss. 830, 27 South. 624, 50 L. R. A. 111, that in dealing with these orders there shall be a liberal construction of by-laws in favor of the insured, so as to prevent a forfeiture, if possible. ‘ This-is but the announcement of the universal rule upon the subject by all the courts.” Keeping in mind this rule of construction, it is further to be said that the overwhelming weight of authority is to the effect that in those provisions which purport to bind the insured, if there is no express provision that he shall be bound by laws to be enacted in the future, then such laws so enacted in the future do not bind the insured. 1 Cooley’s Briefs on Insurance, 709; Miller v. Tuttle (Kan.), 73 Pac. 88; Morrison v. Odd Fellows, 59 Wis. 162, 18 N. W. 13; 29 Cyc. 77; Startling v. Order, 108 Mich. 440, 66 N. M. 340, 62 Am. St. Rep. 709; Hobbs v. Benefit Assn., 82 Iowa 107, 47 N. M. 983, 11 L. R. A. 299, 31 Am. St. Rep. 466; and many other authorities. The cases of Miller v. Tuttle and Startling v. Order, supra, are very clear on this point. The pamphlet purporting to contain the constitution and by-laws of this order, expressly states that they were compiled by a special committee in November, 1904. The benefit certificate was issued to Morris Hoskins in 1895. It thus clearly appears from the only evidence introduced on the subject, and that by the defendant, that those by-laws were passed nine years after the contract between Morris Hoskins and the defendant was entered into. The learned counsel for defendant say that, “where a certain constitution and by-laws are approved, they are presumed on the state of this record to have been properly adopted. It certainly could not be held on the state of this record to be necessary for the appellant to g’o back to the date of the issuance of any particular [822] policies and prove what changes had taken place in the constitution and by-laws since the issuance of same.” But the first great trouble which counsel for defendant encounter is that the by-laws, when proved, are shown to have been enacted nine years after the certificate was issued, and it is wholly fallacious to say that any presumption could be indulged that by-laws which appeared from the defendant’s own testimony to -have been enacted nine years after the certificate was issued, were in force when the certificate was issued. It is perfectly correct to say that a state of affairs shown to have existed in the past may be presumed to continue to exist, in the absence of proof to the contrary. But surely there never can be any legal presumption that a condition of affairs shown to exist now, in the present, for the first time, existed in the past. As very correctly said by learned counsel for appellee: “If the defendant’s contention on this point were correct, then defendant could show that a set of by-laws were passed on the day before the member’s death, and it would be presumed that they existed when the certificate was given twelve years before. That would be absurd.” Since, therefore, the only evidence, after the constitution and by-laws are considered, as to when they were adopted, shows that they were adopted nine years after the certificate was issued, and since there is in the provision relied on in the certificate no express contract by Morris Hoskins to be bound by all laws thereafter enacted, the appellant was without any valid defense. Affirmed Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein set out the decree of the court below is affirmed.