220 F. 138 reversed.
Page 245 U. S. 595
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
We shall designate the parties as they were in the trial court,
the plaintiff in error as defendant and the defendant in error as
plaintiff.
This is a suit to enjoin an increase of assessment upon a
certificate -- we shall call it a policy -- of insurance on the
life of the plaintiff, issued by the defendant. The asserted claim,
approved by the lower courts, is that the defendant is estopped to
demand such increased payment, or to cancel the policy for failure
to pay it, for the reason that, at the time plaintiff's policy was
delivered to him, there was handed to him by the secretary of the
local section a pamphlet which purported to be a copy of the
"Constitution and General Laws" of the insurance section or
"Endowment Rank" of the defendant, which were then in force, in
which copy Article IV, Section 1, reads:
"Each member . . . shall pay . . . a monthly assessment, as
provided in the following table,
and shall continue to pay the
same amount thereafter as long as he remains a member of the
Endowment Rank."
This provision, it is contended, became a part of the contract
of insurance with the plaintiff, which could not be changed without
his consent, and made unlawful any increase in his assessment. The
defense is that power was given to the defendant by its charter to
change its bylaws;
Page 245 U. S. 596
that, by provisions in his policy and in his application for it,
the plaintiff was notified and charged with knowledge of this fact,
and that the increase of assessment complained of was duly
authorized pursuant to the terms of this grant of power.
In the disposition which we make of the case, the further claim
of the defendant that the bylaw relied upon by the plaintiff had
been amended before the policy was issued to him becomes
unimportant.
The facts of the case before us make it clear that it must be
ruled by the decision of this Court in
Supreme Lodge, Knights
of Pythias v. Mims, 241 U. S. 574.
The defendant is the same fraternal insurance corporation which
was plaintiff in error in that case, and its corporate history
there detailed need not be repeated here.
The plaintiff in this case (as in the other) was a member of the
fourth class of the "Endowment Rank," and his policy for $3,000 was
delivered to him on November 26, 1889, upon an application filed
the 26th of the preceding month. He paid a monthly assessment of $3
until 1894, when it was increased to $3.15, which he paid until
1901, when it was increased to $4.80, which he paid until 1910,
when he received a notice of an increase to $14.70, which he
refused to pay, and made the basis of his claim in this suit.
In the
Mims case, the original policy was issued in
1879, but was surrendered for another in May, 1885, which
contained, as the report shows, the same provisions, in almost the
same words, as in the Smyth policy. When it was issued, the bylaw
on which the plaintiff relies in this case was confessedly in full
force, so that, if it be admitted that this bylaw was in the form
which the plaintiff claims it was represented to him to be at the
time his policy was issued, nevertheless his position would be
precisely that of Mims.
Two increases of assessment made prior to the one objected
Page 245 U. S. 597
to were paid by Mims "under protest" and by Smyth without
objection. The cases are on all fours one with the other, and the
decision of the earlier one, which it should be noted was rendered
since the decision in the circuit court of appeals, must be
accepted as ruling this case on the merits as it also rules against
the motion by the defendant in error to dismiss.
Texas & P.
Ry. Co. v. Hill, 237 U. S. 208, and
also
237 U. S. 215.
It results that the decision of the circuit court of appeals
must be
Reversed.