
    Independent Order of Sons and Daughters of Jacob of America v. Saul Moncrief.
    [50 South. 558.]
    1. Chancery Pleadings and Practice. Exhibits to pleadings. Demurrers.
    
    Where a hill in equity against a fraternal order charged that the defendant’s liability to complainant became fixed by specified sections of its constitution and by-laws and required the order to file copies of the same, to become when filed exhibits to the bill, the same when filed by defendant become parts of the bill in determining its sufficiency on demurrer.
    2. Insurance. Fraternal orders. Forfeiture of membership. Siete benefits. By-laws.
    
    Where the by-laws of an order, which forfeited membership on a failure to pay dues, authorized it to provide benefits for sick members only on condition that, and when, the order had taken action and voted him the benefit, a member in arrear for dues, to whom no benefit was ever allowed, cannot escape a forfeiture of his membership on the claim that “sick benefits” should have been credited to his dues.
    From tbe chancery court of Newton county.
    HoN. Samuel Whitman, Jr., Chancellor.
    Moncrief, appellee, was complainant in the court below; the Independent Order, etc., appellant, was defendant there. From .a decree overruling defendant’s demurrer to the bill of complaint, it appealed to the supreme court.
    (The bill charged that one Adaline Moncrief, complainant’s wife, held a death benefit certificate in the appellant order, in which complainant was the beneficiary, of date January 26, 1904; that she had paid all dues on same up to July, 1901; that Ids said wife became sick with tuberculosis in January, 1907, and died the following December; that during the time of her ¡sickness the said order made no allowances to her in the nature of a sick benefit, although she was in needy‘circumstances; that proper proof of death had been made by complainant, the beneficiary in the certificate, to whom it was due, but payment of the policy had been refused by defendant. The bill'further charged that the wife of the complainant was, because of her poverty, unable to make payments of her monthly dues from July, 1907, until her death; that it was the duty of said order to allow her the sick benefit, and that the scribe, an officer of defendant, should have had this allowance made, and deducted her dues from the amount, and sent her the balance, which he failed to' do; and that because of said failure his said wife was not in default in the payment of monthly dues. The bill makes the constitution and by-laws a part thereof, and refers to them specially, and alleges that complainant is not in possession of a copy of same, and prays that the defendant be required to bring them into court for inspection.
    To this bill the defendant demurred, on the grounds that complainant’s wife was not in good standing, because she had failed to pay assessments, being several months in arrears at the time of her death, and had forfeited her membership under the constitution and by-laws; that according to the constitution and bylaws a sick benefit could not be allowed her, except by vote of the local lodge, and that it was not the mandatory duty of the lodge to order a sick benefit, and that it was not the duty of the scribe to do so without the matter having been acted upon by the local lodge; that, the defendant’s intestate having failed, re-? fused, and neglected to comply with the terms and conditions of her contract, she had forfeited her membership and right to a death benefit,, all of which would appear from the bill itself and the constitution and by-laws of said order.
    W. J. Latham, for appellant.
    It is an elementary proposition of law regarding mbtual or fraternal benefit societies, that the policy or certificate and bylaws and constitution of the society together constitute the contract of membership between tbe member and. the society. Ma-deria v. Merchant's Exchange Mid. Ben. Soc. (C. C.), 16 Fed. 794; Smith v. Bouditch Mut. F. Ins. Go., 6 Cush. (Mass.) 448 ; 1 Cooley’s Briefs on Insurance, 692, 693. And the insured is. •charged with knowledge of this in the by-laws and constitution. The by-laws and constitution are made a part of the bill of complaint in this case. Bauer v. Sampson Lodge, 102 Ind. 262, 1 Bacon on Ben. Soc. § 81; Pfister v. Qerwiclc, 122 Ind. 567.
    It will be seen from the enacting clause in book of laws, see. 1, p. 63, that the by-laws and constitution filed in the cause at the request of appellee, were in force and effect at the time of the ■forfeiture and death of the insured, Adaline Moncrie'f.
    TJpon the failure of Adaline Moncrief to pay the assessment which became due and payable on or before the 10th day of July, 1907, she became unfinancial and suspended from the benefits provided for financial members of the order.
    The liability and obligations of every member of the appellant is fixed to a certainty, without any reservation or exceptions by the by-laws and constitution. Sec. 5, p. 30.
    The law is self-executing and the moment the time has passed for payment and the member not having paid, she is then suspended without any action of the order or subordinate branch. •Sec. 9, p. 32.
    The authorities are uniform in holding that a fraternal benefit society has the right to enact by-laws which will of themselves work a forfeiture upon the failure of a member to strictly •comply with them, without the necessity of any further action being taken by the order or its officers, and no recovery can be had upon the member’s benefit certificate. Illinois M. B. S. v. Baldwin, 86 Ill. 479; Bargraete v. E. II., 22 Mo. App. 137,142; ■Stewart v. Supreme Council, 36 Ind. 319; Lehman v. Clarice, 174 Ill.' 279; Scheele v. Grand Lodge, 63 Mo. App. 277; Pood ■v. Pailway Pas. Assn., 31 Fed. 62; Rosworth v. Western M. & Assn., 75 Iowa, 582; Mclnnis v. New Orleans Cotton Fxc. Assn., 10 South. 180.
    
      Sickness and poverty are no excuse and do not relieve tbe insured from tbe burdens of paying tbe assessments required of all members alike. 3 Cooley’s Briefs on Insurance, 2380, 2381; Ilawkshaw v. K. of II. (O. 0.), 29 Bed. 770; McFlhone v. Mass. Assn., 2 App. D. 0. 397; Grand Lodge A. 0. W. W. v. 'Jesse, 50 Ill. App. 101; Carpenter v. Centennial Life Assn., 68 Iowa, 4-53; Yoe v. Howard Masonic Mut. Ben. Assn., 63 Md. 86.
    Tbe constitution and by-laws of tbe order nowbere provide that a sick member should receive benefits at all events, but on tbe contrary it bas express provisions against sucb allowances by tbe subordinate lodges. Sec. 2, p. 47 of tbe constitution and by-laws. St. Patrick’s Male Soc. v. McVey, 92 Pa. St. 510.
    
      J. H. Mize and F. F. Mize, for appellee.
    Tbe appellant in this case is an organization for tbe protection of sucb members as might come to tbe condition of Adaline-Moncrief, and its rules should be liberally construed in favor of tbe insured. Independent Order of Sons, etc., v. Mwphy, 77 Miss. 830, 27 South. 624; Morgan v. Independent Order of Sons, etc., 90 Miss. 864, 44 South. 791.
    Tbe copies of by-laws filed by appellant in tbe case cannot be considered on demurrer. In other words, all that comes before tbe court is whether or not the demurrer was properly overruled., Appellant’s demurrer bas admitted tbe allegations of tbe bill to-be true, and, taken as true, they constitute a cause of action, and tbe demurrer was properly overruled and .the decree should be affirmed.
    Argued orally by W. J. Latham, for appellant. •
   Mates, J.,

delivered tbe opinion of tbe court.

Tbe bill in this case wholly fails to state, any cause of action, and tbe demurrer should have been sustained. Tbe constitution and by-laws of tbe order constitute a part of tbe bill, of complaint by express allegations of tbe bill. Thus it is alleged tbat tbe liabiity of tbe order became fixed by sections 1, 2, 3, 4, and 5 of article 4 of tbe by-laws, and various other references are made to tbe constitution and by-laws in tbe complaint. It is expressly requested, as a part of tbe bill, by reason of tbe fact tbat tbe complainant bas been unable to obtain a copy to file as an exbibit to tbe bill, tbat defendant be required to file a copy of tbe by-laws, and tbat same be made a part of tbe bill. And yet counsel for appellee argue, after this part of tbe prayer bas been complied witb, and tbe constitution and by-laws filed, tbat tbe court bas no right to consider same on this demurrer. There is nothing in this argument. These by-laws are as much a part of this bill, in tbe case as it now stands, as if they bad been actually copied into tbe face of tbe bill. When we examine these bylaws, we see tbat tbe failure to pay dues by members of tbe order forfeits tbe membership; and when we examine tbe bill, it shows tbat Adaline Moncrief did not pay her dues from July, 1907, to December, 1907, tbe last date being tbe date of her death. Thus it is that on tbe face of tbe bill it is shown tbat tbe insured was not a member of tbe order when she died, and therefore not entitled to insurance, unless there was some excusable reason for this failure to pay tbe dues, and made excusable under the constitution and by-laws of tbe order. ;

Tbe excuse offered in tbe bill for tbe nonpayment of tbe dues is tbat Adaline Moncrief was sick, and because she was sick became entitled to a sick benefit, and tbat it was tbe duty of tbe lodge to pay tbe dues out of this sick benefit, sending to tbe sick member only tbe surplus, after retaining all dues tbat might be owing; but, when tbe constitution and by-laws are examined, it will be seen tbat tbe order does not agree to pay to all parties who are sick a benefit. Tbe lodge can provide a sick benefit for a sick member, but tbe lodge does not agree, absolutely, to allow every sick member a benefit; but a member becomes entitled to a benefit on two conditions, namely, that be is sick, and, secondly, after be is sick, that tbe lodge take further action and vote tbe member an allowance. Tbe lodge bad made no allowance in this ease, and it is expressly so alleged in tbe bill, and until tbe allowance bad been made there was no obligation on tbe part of tbe lodge to pay anything.

Demurrer sustained, decree reversed and cause remanded.

Reversed.  