Independent Order of Puritans v. Cadden

Court of Appeals of Georgia

Independent Order of Puritans v. Cadden

102 S.E. 454, 25 Ga. App. 27, 1920 Ga. App. LEXIS 571

CourtCourt of Appeals of Georgia

DecidedMarch 3, 1920

Docket11118

StatusPublished

Cited by7 cases

This text of 102 S.E. 454 (Independent Order of Puritans v. Cadden) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Independent Order of Puritans v. Cadden, 102 S.E. 454, 25 Ga. App. 27, 1920 Ga. App. LEXIS 571 (Ga. Ct. App. 1920).

Pincite

Opinion

Broyles, C. J.

1. Where a party relies on the law of another State as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this State, or the common law, the law of the foreign State should be pleaded and proved. Southern Express Co. v. Hanaw, 134 Ga. 445 (7), 458 (67 S. E. 944„ 137 Am. St. R. 227).

2. While the general rule is that where a policy is issued by a mutual' insurance or benefit insurance society, the insured becomes a member of the society, and must take notice of and be bound by its by-laws although they are not recited in the policy or expressly made a part thereof, yet where the terms of the policy are in conflict with a by-law of the Society, it having power under its charter to issue such a policy, the society must be deemed to have waived the provisions of the by-law in favor of the insured, and the policy will control the rights of the parties. Gienty v. Knights of Columbus, 199 N. Y. 103 (92 N. E. 111, 20 Ann. Cas. 928) ; McCoy v. Northwestern Mutual Relief Association, 92 Wis. 577 (66 N. W. 697, 47 L. R. A. 681); Davidson v. Old People’s Mutual Benefit Society, 39 Minn. 303 (39 N. W. 803) ; Morrison v. Wisconsin Odd Fellows Mutual Life Ins. Co., 59 Wis. 162 (18 N. W. 13); Union Mutual Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. D. 375); Fitzgerald v. Equitable Reserve Fund Life Association, 3 N. Y. Supp. 214; Failey v. Fee, 83 Md. 83 (34 Atl. 839, 32 L. R. A. 311, 55 Am. St. R. 326); Hale v. Equitable Aid Union, 168 Penn. 377 (31 Atl. 1066).

(a) In passing upon such a conflict the courts, in determining the rights of the parties, will adopt the provision that will give the greater right to the insured and his beneficiary. Supreme Tent etc. v. Volkert, 25 Ind. App. 627 (57 N. E. 203).

3. Under the above rulings and the facts of the instant case, the judge, sitting without a jury, properly resolved the conflict between the certificate of membership issued by the society and its by-laws in favor of the former, and did not err in rendering- jridgment for the plaintiff for the full amount of the policy and interest thereon.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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Broyles, C. J.

1. Where a party relies on the law of another State as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this State, or the common law, the law of the foreign State should be pleaded and proved. Southern Express Co. v. Hanaw, 134 Ga. 445 (7), 458 (67 S. E. 944„ 137 Am. St. R. 227).

2. While the general rule is that where a policy is issued by a mutual' insurance or benefit insurance society, the insured becomes a member of the society, and must take notice of and be bound by its by-laws although they are not recited in the policy or expressly made a part thereof, yet where the terms of the policy are in conflict with a by-law of the Society, it having power under its charter to issue such a policy, the society must be deemed to have waived the provisions of the by-law in favor of the insured, and the policy will control the rights of the parties. Gienty v. Knights of Columbus, 199 N. Y. 103 (92 N. E. 111, 20 Ann. Cas. 928) ; McCoy v. Northwestern Mutual Relief Association, 92 Wis. 577 (66 N. W. 697, 47 L. R. A. 681); Davidson v. Old People’s Mutual Benefit Society, 39 Minn. 303 (39 N. W. 803) ; Morrison v. Wisconsin Odd Fellows Mutual Life Ins. Co., 59 Wis. 162 (18 N. W. 13); Union Mutual Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. D. 375); Fitzgerald v. Equitable Reserve Fund Life Association, 3 N. Y. Supp. 214; Failey v. Fee, 83 Md. 83 (34 Atl. 839, 32 L. R. A. 311, 55 Am. St. R. 326); Hale v. Equitable Aid Union, 168 Penn. 377 (31 Atl. 1066).

(a) In passing upon such a conflict the courts, in determining the rights of the parties, will adopt the provision that will give the greater right to the insured and his beneficiary. Supreme Tent etc. v. Volkert, 25 Ind. App. 627 (57 N. E. 203).

3. Under the above rulings and the facts of the instant case, the judge, sitting without a jury, properly resolved the conflict between the certificate of membership issued by the society and its by-laws in favor of the former, and did not err in rendering- jridgment for the plaintiff for the full amount of the policy and interest thereon.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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102 S.E. 454, 25 Ga. App. 27, 1920 Ga. App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-order-of-puritans-v-cadden-gactapp-1920.

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