Opinion
No. 31681.
May 6, 1935. Suggestion of Error Overruled June 3, 1935.
1. ABATEMENT AND REVIVAL.
Whether right of action existed in plaintiff to sue on fraternal life policy was matter in abatement and could not be raised during trial unless written notice thereof had been given by defendant with plea stating name of person entitled to bring suit (Code 1930, section 514).
2. PARTIES.
Objection that plaintiff cannot sue, or sues by improper name, must be made by plea in abatement (Code 1930, section 514).
3. APPEARANCE.
Special appearance does not exist in Mississippi courts.
4. APPEAL AND ERROR.
In action on fraternal life policy, defendant could not complain of alleged error in refusing to quash summonses against defendant where defendant appeared and defended action, and hence was not prejudiced by alleged error (Code 1930, section 5246).
5. EVIDENCE.
In action on fraternal life policy issued by society, constitution and by-laws of which provided that society would not insure any one over age of forty-five years, society could not contend that insured falsely stated in application that she was forty-five years old, where neither application nor copy thereof was attached to defendant's special plea nor produced at trial, notwithstanding application was in society's custody and should have been produced under best evidence rule.
6. INSURANCE.
In action on fraternal life policy issued by society, constitution and by-laws of which provided that society would not insure any one over age of forty-five years, in absence of proof to contrary, court would assume that insured stated correct age in application.
7. INSURANCE.
That certificate of membership is issued to one who is beyond age limit at which persons can be admitted to beneficial society under its constitution and by-laws does not render contract void, where such contract is not prohibited by society's charter; but contract is ultra vires where age limit is fixed by charter or certificate of incorporation.
APPEAL from the circuit court of Forrest county.
HON.W.J. PACK, Judge.
Action by D. Talmadge Webster against Afro-American Sons and Daughters. From a judgment of the circuit court affirming a judgment of county court for plaintiff, defendant appeals. Affirmed.
Currie Currie, of Hattiesburg, for appellant.
Rule of pleading, under Annotated Code 1892, section 528, being section 526, of Mississippi Code 1930, where there is a conflict between an allegation in the bill and the recital in an exhibit the latter controls on demurrer.
McKinney v. Adams, 50 So. 474, 95 Miss. 832; House v. Gumble, 78 Miss. 259, 29 So. 71; McNeil v. Lee, 79 Miss. 455, 30 So. 821; Weir v. Jones, 84 Miss. 610, 37 So. 128; Columbian Mutual Life Assurance Society v. Herrington, 104 So. 297, 139 Miss. 826; Montgomery v. Hanover National Bank, 30 So. 635, 79 Miss. 443.
There being no designated beneficiary in the insurance contract, then the benefits payable under the policy descended to the lawful heirs of the deceased, Fannie Harris.
House v. Gumble, 78 Miss. 259, 29 So. 71.
The court committed reversible error in requiring the appellant to go to trial over its written objections.
Article 14 of chapter 127, Mississippi Code 1930.
The court had no right to proceed until appellee had shown that proper service had been had upon appellant.
Globe Rutgers Fire Ins. Co. v. Sayle, 65 So. 125; National Surety Co. v. Board of Supervisors of Holmes County, 83 So. 8.
Under the wording of the contract the benefits to be derived descended to Fannie Harris' heirs at her death. The payment of a judgment to appellee would not be a bar to a suit by the lawful heirs of Fannie Harris.
Where there is a variance between the pleadings and the evidence the proper course is to exclude the evidence.
Greer v. Bush, 57 Miss. 575; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; True Hixon Lbr. Co. v. McDonough, 123 So. 855, 154 Miss. 720; Carter v. Preston et al., 51 Miss. 423; Drake v. Surget, 36 Miss. 458.
The constitution and by-laws by the very provision itself held the age question open for investigation at all times, and it fixed its liability, under the contract sued on with reference to what the facts actually showed with reference to the age, and no fraud is required to be proven in securing the policy or in making the application, nor in any other respect. If an honest investigation showed that the deceased, Fannie Harris, was over forty-five years of age, as provided by the by-laws of the order, then the only liability under the policy would be the return of the premiums.
The instructions granted appellee and appellant were contradictory and in irreconciliable conflict.
Solomon v. City Compress Co., 12 So. 339; I.C.R.R. Co. v. McGowan, 46 So. 55, 92 Miss. 603; Y. M.V.R.R. Co. v. Cornelius, 95 So. 90; Hines v. Lockhart, 105 So. 449; Columbus G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Terry v. Smylie, 133 So. 662, 161 Miss. 31.
Wm. Haralson, of Hattiesburg, for appellee.
The appellant has never produced the policy, the application for membership, receipts, books, nor any other evidence bearing on the issues of this case.
The appellant contends that the process was not proper for the reason that appellee did not procure a certified copy of the appointment of the insurance commissioner as agent for the appellant insurance company. It is our understanding of the law that such would only be necessary in the event of a default judgment, and then only when the declaration fails to state that the insurance commissioner was the authorized agent of the insurance company.
Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205.
It is submitted that even before the plaintiff closed his case it was clearly shown that he was the beneficiary. Such being the situation, it was then incumbent upon the appellant to show otherwise.
Masonite Corporation v. Hill, 154 So. 295.
The contention of appellee is that the agent of the insurance company could not waive the provisions of the by-laws with respect to age.
London Guaranty Accident Co. v. Miss. Central, 52 So. 787; Lewis v. Mutual Reserve Fund Life Assn., 27 So. 649; Planter Ins. Co. v. Myers, 55 Miss. 479; Fraternal Aid Union v. Whitehead, 87 So. 453; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 19 Am. St. Rep. 326; L. L. G. Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307; Big Creek Drug Co. v. Stuyvesant Ins. Co., 115 Miss. 561, 76 So. 548; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; 45 C.J., sec. 14b, page 15; Modern Woodmen of America v. Head, 96 So. 219.
The chief complaints of appellant have been: First, that it is not shown that the plaintiff (appellee here) is the beneficiary; second, that the insured fraudulently misrepresented her age in the application. Yet the appellant has repeatedly and obstinately failed and refused to produce the policy which would have shown without any doubt who was the beneficiary. Appellant has likewise failed and refused to produce the application in which it contends the insured made false representations as to her age.
Appellee brought this action against appellant in the county court of Forrest county on a fraternal life insurance policy issued by appellant to appellee's grandmother, Fannie Harris, deceased, in which appellee claimed to be the beneficiary. There was a trial and judgment in favor of appellee in the sum of three hundred seventy-five dollars. From that judgment appellant appealed to the circuit court of the county, where the judgment of the county court was affirmed, and from that judgment appellant prosecutes this appeal.
Appellee is the grandson of the insured, Fannie Harris. The grandmother died shortly before this suit was brought; she held an insurance policy, or "benefit certificate" as it is more often referred to in the evidence, in appellant organization. A photostatic copy of the certificate, except the back of it, was made an exhibit to the declaration. The face of the policy referred to the beneficiary without naming him. Appellee, claiming to be the beneficiary, brought this action.
Appellant assigns and argues as error the action of the court in refusing to render judgment for it upon the ground that it was not shown that appellee was the beneficiary. Whether appellee was the beneficiary in the policy — whether the right of action existed in him — was a matter in abatement. This question could not be raised during the trial, unless written notice thereof had been given by appellant with its plea stating the name of the person entitled to bring the suit. Section 514, Code of 1930. An objection that the plaintiff cannot sue, or sues by an improper name, must be made by plea in abatement. Hudson v. Poindexter, 42 Miss. 304. This was not done. The question was raised for the first time during the progress of the trial.
Section 5246, Code of 1930, provides, among other things, that no service of process on a fraternal insurance company shall be binding when it is required to appear and plead in less than thirty days from the date of the mailing of the copies of such service to the society. The first summons for appellant was issued on the 5th day of July, 1933, returnable on the 10th day of July, 1933. Of course, the service of this summons under the statute did not require appearance by appellant. However, thereafter an alias summons was issued on January 2, 1934, served on January 3, 1934, which required appellant's appearance on the 12th day of February, 1934, more than thirty days from the day of service. There was no evidence in the record of the mailing of a copy of the summons as required by the statute. Appellant's appearance and the trial took place after the latter return day. Appellant moved to quash the first summons, which motion was overruled; then moved to quash the second summons, which was also overruled. That action of the court is assigned and argued as error. Appellant's contention is that both the first and the last service were void. Suppose they were — appellant's rights were not shown to have been prejudiced thereby. It appeared and defended the action. Suppose it had done so without any process whatever being issued and served, could it complain? There is no such thing in this state as special appearance in our courts. It has long been the settled practice "that when a party comes in he must come in entirely or else he must entirely stay away." There is no such thing as "partly appearing and partly not appearing." McCoy v. Watson, 154 Miss. 307, 122 So. 368, 369.
Appellant's constitution and by-laws provide that it will not insure any one over the age of forty-five years. The certificate provides that any false statement as to the age shall, at the option of the society, avoid the policy upon returning to the beneficiary or holder all dues paid, and that the application for membership and the by-laws of the order shall be a part of the contract as though the same were fully written therein. In a special plea the appellant set up that Fannie Harris, the insured, stated in her application that she was forty-five years old, which was not true; that she was much older; and that this false statement avoided the certificate. The evidence showed without conflict that she was nearer seventy years of age than forty-five. Neither the application nor a copy of it was attached to appellant's special plea, nor produced at the trial, notwithstanding it was in appellant's custody, if in existence. It lay at the very foundation of this contention; appellant should have produced it under the best evidence rule. For aught that appears to the contrary in this record, the insured stated her true age in the application. In the absence of proof to the contrary, it will be presumed that she did.
The question is whether or not appellant was liable, regardless of that violation of its constitution and by-laws. There was no evidence that its charter was violated in issuing the certificate. The rule is laid down thus in 45 C.J. 15, par. (14) b: "The fact that a certificate of membership is issued to one who is beyond the age limit at which persons can be admitted to the society under its constitution and by-laws does not render the contract void where such contract is not prohibited by the society's charter; but such contract is ultra vires where the age limit is fixed by the charter or certificate of incorporation." We think that those principles are sound. If appellant issued the certificate knowing that the insured was over the age limit, the contract, nevertheless, is binding. If the insured, however, stated in her application her age to be forty-five years or less, we might have a different case; but we are unable to find any evidence in this record that she made any such statement. The application itself, as stated, is the best and only evidence, as long as it is in existence and obtainable, as to what she did state with reference to her age.
We do not think the other assignments of error are of sufficient merit to call for a discussion.
Affirmed.