Independent of the influence of any statute affecting the subject, the authorities are overwhelmingly to the effect (1) that the mere custody of a life insurance policy by the beneficiary named therein, though that beneficiary alsovoluntarily pay the dues or assessments thereon, will not deprive the insured of his expressly given power to change the beneficiary in accordance with the rules of the association; and (2) that, where the original beneficiary is named pursuant to an agreement, express or implied, that he shall be so named, upon some valid consideration moving from him, he acquires an equitable interest in the policy which cannot be defeated by a substituted beneficiary having no superior equity, notwithstanding the general rule that the beneficiary of such a certificate does not acquire a vested right. Columbian Circle v. Mundra, 298 Ill. 599, 132 N.E. 213, 18 A.L.R. 378, and note, 383-393; McDonald v. McDonald, 212 Ala. 137, 102 So. 38, 36 A.L.R. 761; Id., 215 Ala. 179, 110 So. 291; 37 C. J. 579, 580, § 345.
Those principles of law are not disputed, and the decisive question here presented is whether or not the second proposition upon which the equity of complainant's bill depends has been changed, with respect to fraternal benefit policies like this, by section 8445 of the Code, which is a part of the act of April 24, 1911.
This statute, after limiting the beneficiaries that may be named to certain specified relatives or dependents, declares:
"Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have orobtain any vested interest in the said benefit until the samehas become due and payable upon the death of the said member."
This declaration is positive and sweeping in its terms. If it were stated merely that such a beneficiary took no vested interest it might be fairly contended that this did not change the general principle which recognizes a vested equity in beneficiaries under the conditions predicated above; but, when it declares that no beneficiary shall have or obtain any vested interest before the death of the insured, we cannot avoid the very plain meaning of the words, nor deny to them the effect so plainly intended by the Legislature — an effect in line with all modern legislation on this subject, and specifically with the Uniform Fraternal Beneficiary Act, adopted in many of the states, as pointed out by Mr. Bacon in his Benefit Societies (4th Ed.) vol. 1, pp. 863, 864. See, also, Supreme Tent, etc., v. Altmann, 134 Mo. App. 363, 114 S.W. 1107; Supreme Council, etc., v. Behrend, 247 U.S. 394, 38 S.Ct. 522, 62 L.Ed. 1182, 1 A.L.R. 966; Malancy v. Malancy, 165 Wis. 642, 163 N.W. 186; Grand Lodge, etc., v. Denzer, 129 Ky. 202, 110 S.W. 882, where the influence of statutes or by-laws was fully recognized. *Page 423
Under the influence of this statute, the complainant did not acquire, and could not "obtain," any vested equity in this policy unless she were the actual and nominal beneficiary therein at the time of the death of the insured,unless it appears that this Brotherhood of Railroad Trainmen is an association which is excepted by some other statute from the provision in question.
Counsel for complainant point, for this effect, to section 8503 of the Code, in the same article, declaring that —
"Nothing contained in this article shall be construed to affect or apply to * * * or societies which limit their membership to any one hazardous occupation. * * *"
The burden is, of course, upon the complainant to show that this insurer — brotherhood — is an excepted class in order to escape the effect of section 8445. As to this the bill of complaint avers nothing, but counsel insists that this court may and must take judicial notice of the fact that this brotherhood has a membership limited by its own laws to "one hazardous occupation." We are clear, however, in the conviction that our judicial knowledge does not extend so far. At most, we might infer that its membership is made up of trainmen; but, even so, we do not know that all members are restricted to a single, and also a hazardous, occupation. Those are not matters of common knowledge, and they must be alleged and proved.
The case of Sovereign Camp v. Allen, 206 Ala. 41, 45,89 So. 58, does not support appellant's theory of judicial notice, and holds merely that courts judicially know that the position of a railroad flagman is one of "hazardous employment," equally with that of conductor, brakeman, fireman, or switchman, a very different matter.
It is suggested for appellant that in any case she is entitled to reimbursement out of the policy fund to the extent of the dues and assessments paid by her. Such a claim, however, falls as clearly within the inhibition of the statute (section 8445) as a claim to the entire fund, and cannot be allowed without violating the law. Royal Arcanum v. Hartzman,140 Mo. App. 105, 120 S.W. 629.
The dismissal of the bill as unamendable, though assigned for error, is not argued in the brief for appellant, and hence we treat it as waived.
As to the contention that complainant was defrauded by a false affidavit by means of which the insured effected the substitution of another beneficiary and secured the issuance of a new policy, as observed by Mr. Justice Sayre in McDonald v. McDonald, 212 Ala. 137, 141, 102 So. 38, 36 A.L.R. 761, if complainant had no vested interest in the policy, she could not have been defrauded, and, if she had such an interest, the alleged fraud could not have affected it; hence the imposition, if any, was upon the association alone, and, if the association waives it, no one else can complain. It was so declared in Slaughter v. Grand Lodge, etc., 192 Ala. 301, 305, 68 So. 367. See, also, to the same effect, Hoeft v. Supreme Lodge, etc.,113 Cal. 91, 45 P. 185, 33 L.R.A. 174; 4 Cooley's Briefs on Insurance, 372. The allegation of fraud in this behalf does not aid the bill.
It results that the demurrer to the bill is well grounded and was properly sustained.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
On Rehearing.