Opinion
May Term, 1899.
Frederick Collin, for the appellant.
S.L. Wheeler, for the respondent.
When the certificate of membership was issued by the defendant to David B. McNeil, the contract of insurance between the parties was formed by said certificate and the charter and by-laws of the defendant then in force. ( People v. Grand Lodge of Empire Order, 156 N.Y. 533, 537.)
Those by-laws provided, among other things, in substance, that if the assured should fail to pay an assessment after due notice thereof, within a time mentioned, he should forfeit all rights upon the association, but that the board of directors should have power to restore a delinquent member on his giving personally, or in writing, a satisfactory excuse for his default, and paying all dues and assessments to that date. The provisions thus referred to entered into the contract made between the parties; and as the subsequent by-laws adopted by the defendant prior to January 11, 1892, contained no substantial change as to the effect of a non-payment of an assessment by a member of the association or the procedure to be adopted in such a case, they continued in the contract at least from October 19, 1874, until the change made in the by-laws on January 11, 1892.
In the case of Dennis v. M.B. Association ( 120 N.Y. 496), an action to recover on a contract of insurance containing similar provisions in regard to the effect of the non-payment of an assessment, it was held "that defendant's contract must be construed as an agreement on its part to accept a valid, i.e., a sufficient or satisfactory excuse for non-payment, and thereafter continue the policy in force; that the question as to the validity of the excuse was not left exclusively to the determination of defendant's officers, but where such an excuse existed they were bound to be satisfied therewith; that the facts showed a valid excuse, and that the death of D. did not alter defendant's contract obligations, but the legal right to reinstatement passed to the beneficiary under the policy." In the case cited a notice of assessment was given to the insured on February fifteenth. On March eighth he was stricken with apoplexy and became unconscious, remaining in that condition until March nineteenth, when he died. It was held that his condition was a valid excuse for the non-payment of the premium, and should have been accepted by the defendant, and that the plaintiff was entitled to recover. Under the doctrine stated in that case, it cannot be doubted that if the by-laws in force when the contract between the defendant and the deceased was made, continued to enter into the contract under which the plaintiff claims, at the time of the death of David B. McNeil, the plaintiff was entitled to recover. The excuse for the non-payment of the assessment was as good and valid as that rendered in the authority cited. The deceased, when the assessment of January 10, 1896, was made, was insane, and continued in that condition up to the date of his death. The beneficiary, as soon as he ascertained that an assessment had been made, notified the defendant of the condition of the deceased and offered to pay the assessment. No objection was made to the manner of notification or proof required as to the insanity of the insured, or in regard to his condition of health, the defendant absolutely declining to reinstate him on the ground simply that he was over fifty-five years of age.
In the year 1892, and also in 1893, the defendant adopted new by-laws, by which, in substance, it was provided that if a member, after due notice, failed to pay an assessment within thirty days, the certificate of membership should be null and void. But power was given to the executive committee of the defendant to reinstate a delinquent member at any time within one year for good cause shown, and upon satisfactory evidence of good health. The deceased after he had failed to pay the assessment of January 10, 1896, being insane, it was not possible to produce satisfactory evidence of good health. Insanity is a mental disease, and also implies disease or congenital defect in the brain. (1 Rawle's Bouv. L. Dict. 1051)
Within the meaning of the insurance contract, one insane cannot be deemed in good health. If, therefore, the contract between the parties can be deemed changed by the by-laws adopted in 1893, which appear to have been in force at the time of the death of the insured, in reference to non-payment of assessments, the recovery cannot be sustained. ( Dennis v. M.B. Association, 120 N.Y. 501; Wheeler v. Connecticut Mut. Life Insurance Co., 82 id. 543.) The insanity of the deceased did not excuse his non-payment of the assessment, and satisfactory proof that he was in good health was not and could not be produced.
But under the contract entered into between the parties, which had been in existence for over seventeen years before the by-laws as to the effect of the non-payment of an assessment had been substantially changed, as that contract has been construed in Dennis v. M.B. Association ( supra), the plaintiff having furnished a satisfactory excuse for the non-payment of the assessment of January 10, 1896, was entitled to maintain this action.
Did the adoption of the by-laws of 1892 and 1893 by the defendant have the effect of changing the contract as then existing between the parties, and after such adoption did those by-laws become and form a part of the contract, instead of those existing when the certificate was issued?
It will be noticed that, by the certificate, David B. McNeil became a member of the association, "entitled to all its rights, privileges and benefits, and subject to the laws, rules and regulations governing said association." The certificate did not provide that the deceased should be subject to the rules and regulations thereafter enacted; and the by-laws then existing, while providing the procedure by which they might be amended, contained no provision empowering the corporation to amend its by-laws so as to affect existing contracts. There was no express reservation of the right to amend the by-laws. The contract by its terms did not confer upon the corporation a right to change its provisions by the enactment of a new by-laws. But the defendant undoubtedly possessed the same powers that all such corporations possess — to make reasonable by-laws and reasonable amendments thereto.
If the by-laws of 1892 and 1893, as to the effect of the non-payment of an assessment by the insured, on their adoption, took the place of those existing when the contract was made, and became a part of the contract, they effected a material change therein. When the certificate was issued, and until 1892, the membership of the insured could not be forfeited on the ground of his omission to pay an assessment, if he had a satisfactory excuse therefor. Under the by-laws adopted in 1892 and 1893, the failure of the insured to pay an assessment worked a forfeiture of his interest in the association, and he could only be reinstated on satisfactory evidence of good health, no matter what excuse he rendered.
It was provided by the by-laws of 1893 that service of a notice of assessment by mail should constitute conclusive proof of due notice to a member, so that in case of such service by mail, and a failure of a member to receive it, he could not be reinstated, if not in good health. In the case under consideration, the insured was insane when the assessment was made, incapable of transacting business, irresponsible for his actions. He was practically in the same situation as one to whom a notice had been sent by mail, and who had not received it. Although the deceased had a most satisfactory excuse for his failure to pay the assessment, under the by-laws of 1892 and 1893, the executive committee of the defendant not only could not be compelled to accept his excuse, but had no power to receive it. These by-laws, if valid as against the deceased, gave to the defendant a power to forfeit his membership, which it did not possess before. Under the by-laws existing when the contract was entered into, the plaintiff, as beneficiary named in the certificate, was entitled to recover. If the by-laws of 1892 and 1893 had the effect of changing the contract, the plaintiff's claim thereunder ceased.
We are of the opinion that the by-laws of 1892 and 1893, while valid as to subsequent contracts, did not affect that under which the plaintiff claimed in this action.
In 5 American and English Encyclopædia of Law (2d ed. 96) it is said: "A corporation has not the power, by laws of its own enactment, to disturb or divest rights which it has created, or to impair the obligation of its contracts, or to change its responsibilities to its members, or to draw them into new and distinct relations, and all by-laws attempting to do this are inoperative and void."
In the opinion in Illinois Conf. College v. Cooper ( 25 Ill. 133 -137) the following language was used: "A corporation has no power to invade the rights of an individual by a by-law, nor in that way operate upon or affect injuriously the rights of others. They can contract and be contracted with, and are as much bound by their contracts as natural persons, and cannot, without the consent of the other contracting party, impose terms and conditions, before they will perform their contract, not embraced in the contract itself." (See, also, Becker v. Farmers' M.I. Co., 48 Mich. 610; 3 Am. Eng. Ency. of Law [2d ed.], 1084; Kent v. Quicksilver Mining Co., 78 N.Y. 159; Matthews v. A.P.S.N.Y., 136 id. 333, 342.)
A corporation may, however, make rules and regulations not affecting a contract in substance — in other words, reasonable by-laws. But a by-law that will destroy a vested right is not such. ( Kent v. Quicksilver Mining Co., 78 N.Y. 183; Weiler v. Equitable Aid Union, 92 Hun, 277; The People ex rel. Gray v. Medical Society of the County of Erie, 24 Barb. 570; Hobbs v. Iowa Mut. Ben. Assn., 82 Iowa 107; Morrison v. Wisconsin Odd Fellows' M.L.I. Co., 59 Wis. 162.)
The true doctrine, we think is, that a by-law of such an association that would have the effect of materially changing or impairing the obligation of an existing contract, cannot be given a retroactive effect. If it is attempted to give it such a retroactive effect, the by-law is unreasonable, especially in cases where, by the terms of a contract of insurance entered into by such a corporation, no right to amend its by-laws is expressly reserved. It cannot be doubted but that the change in the defendant's by-laws in 1892 and 1893, in reference to the effect of the non-payment of the assessment of a member, was a most material one, and if it could be held to enter into the contract of the parties, effected a material alteration therein. We conclude that the by-laws adopted by the defendant in 1892 and 1893 were inoperative as against the deceased, and did not have the effect of impairing the obligation of the contract existing between the parties. The defendant could not, by a subsequent by-law, affect a vested right, or make a new agreement with the deceased, or impair his rights under a contract which had existed for over seventeen years. It follows that the plaintiff was entitled to recover under principles laid down in Dennis v. M.B. Association ( supra). But although the plaintiff was entitled to recover in the action, we are unable to determine that a recovery for $2,000 and interest can be sustained under the evidence introduced by the parties on the trial.
The by-laws of 1878, which the plaintiff introduced in evidence, contained the following provision in regard to the payment of death claims: "Upon the death of any member of this association, the sum to be paid to the representative of the deceased member, as designated upon the books of the association, shall be $1.00 for every member of the association, not exceeding two thousand members." Those of 1872 contained a similar provision.
There being no testimony contained in the case showing the number of members of the corporation at the time of the death of David B. McNeil, the judgment for $2,000 and interest was unsupported by the evidence.
J. Maxwell Beers, a witness produced by the defendant, however, testified that if the membership of the deceased had not lapsed, the plaintiff would have been entitled to recover the sum of $894.68 under the by-laws of the defendant. This testimony, we think, permitted a recovery by the plaintiff for that sum and interest from the 15th day of October, 1897.
Our conclusion is that the judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates within thirty days after the entry of the order herein to reduce the recovery to the amount above stated. If the plaintiff makes such stipulation the judgment, as modified, should be affirmed, without costs to either party in this court.
All concurred, except PARKER, P.J., dissenting.
Judgment reversed and a new trial granted, costs to abide the event, unless the plaintiff shall stipulate within thirty days after the entry of the order herein to reduce the recovery to $894.68, with interest from October 15, 1897; if the plaintiff makes such stipulation the judgment, as so modified, affirmed, without costs in this court to either party.