Bailey v. Sovereign Camp, W. O. W.

• Decision Date: 08 November 1926
• Docket Number: (No. 4574.)
• Citation: 288 S.W. 115
• Parties: BAILEY v. SOVEREIGN CAMP, W. O. W.
• Court: Texas Supreme Court

Page 115

288 S.W. 115

BAILEY v. SOVEREIGN CAMP, W. O. W.

(No. 4574.)

Supreme Court of Texas.

November 8, 1926.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

On motion for rehearing. Former opinion affirmed.

For former opinion, see 286 S. W. 456.

Beall, Worsham, Rollins, Burford & Ryburn, of Dallas, for plaintiff in error.

Alvin H. Lane and Gresham, Willis & Freeman, all of Dallas, for defendant in error.

COFER, Special Judge.

Attorneys for defendant in error have filed an able motion for rehearing, which shows care and diligence in the treatment and discussion of the proposition involved. However, the court believes that able counsel fail to grasp the material point upon which the decision in this case rests.

The argument on rehearing treats at length the supposed fraud on the part of James H. Bailey. The court does not conceive that the issue of fraud is presented by the record. It is well settled that, where fraud is relied upon for relief from the obligations of a contract, it must be specifically pleaded. We have examined the trial answer in this case, and do not find the defense presented. However, we are of the opinion that the facts and circumstances of this case in no wise support any fraud on the part of Bailey. Bailey simply after his certificate had lapsed tendered the association a premium, which they had the right to accept or reject. No fraud can be imputed to such act.

Defendant in error's argument on the question of waiver does not reach the point involved in this case. The argument fails to distinguish between waiver of provisions of the certificate of insurance while in force and waiver of the forfeiture of the certificate after it has lapsed; between the right of insured, Bailey, to enforce reinstatement, and the voluntary acceptance of Bailey as a risk by the company after forfeiture of his certificate.

The decision of this court has no effect or bearing upon the validity of article 4846, Revised Statutes 1925. This article has reference only to waiver of provisions of the certificate while in force and notice of provisions of the laws of the orders to members of the defendant order. It has no reference to waiver of a forfeiture where no certificate is in force, and the party sought to be held to a knowledge of the laws of the order is no longer a member of the order. The statute by its terms has no application where no certificate is in force. After providing that no officer or agent may waive any provisions of the law of the order, or at least providing that such a stipulation in the certificate of insurance shall be valid, the statute provides with reference to said laws:

"And the same shall be binding on the society and each and every member thereof and on all beneficiaries of members."

When Bailey's certificate became forfeited, and he ceased to be a member, the statute no longer had any application to his case, and he was no longer bound by the conditions of his certificate, except in so far as his right to enforce reinstatement was concerned. When the company accepted his premium unconditionally, they in effect entered into a new contract of insurance with him. Suppose the properly constituted agent of a fraternal benefit society would enter into a new contract of insurance with a person who was not and had never been a member of the order, and suppose that in this contract the regular provisions of the certificate were not inserted, and the...