Johnson v. Sovereign Camp, W. O. W.

• Citation: 83 S.W.2d 605
• Decision Date: 28 May 1935
• Docket Number: No. 6684.,6684.
• Parties: JOHNSON et al. v. SOVEREIGN CAMP, W. O. W.
• Court: Texas Supreme Court

Page 605

83 S.W.2d 605

JOHNSON et al. v. SOVEREIGN CAMP, W. O. W.

No. 6684.

Special Supreme Court of Texas.

May 28, 1935.

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

Action by Mrs. Cora Johnson against the Sovereign Camp, Woodmen of the World, and, in the alternative, against the First National Bank of Brownwood. To review a judgment of the court of Civil Appeals [64 S.W.(2d) 1084] reversing and remanding for new trial, as between all the parties, a judgment for plaintiff against the first named defendant, plaintiff and the second named defendant bring error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

A. E. Wilson, Callaway & Callaway, and Woodruff & Holloway, all of Brownwood, for plaintiffs in error.

McCartney & McCartney, of Brownwood, for defendant in error.

Special Court composed of ALVIN C. OWSLEY, Special Chief Justice, and WM. P. McLEAN, Jr., and DE WITT BOWMER, Special Associate Justices.

OWSLEY, Special Chief Justice.

On the 5th day of October, 1898, the Sovereign Camp, Woodmen of the World, through its Subordinate Camp No. 45 at Brownwood, Tex., issued to J. D. Johnson, the husband of Cora Johnson, plaintiff in the trial court, its beneficiary certificate payable to said Cora Johnson for $2,000. At the time of the issuance of said certificate, the said J. D. Johnson and wife lived in said town of Brownwood, and they continued to so live until the year 1908, when they removed from Brown county and continued to live elsewhere until the death of the said J. D. Johnson, which occurred on the 11th day of January, 1930.

During the time J. D. Johnson and wife so lived in Brownwood, all dues and assessments necessary to keep said certificate in full force were paid through the First National Bank of Brownwood, and, upon leaving there, J. D. Johnson made an arrangement with the clerk of the said Brownwood Camp No. 45 to keep on deposit in said First National Bank sufficient money to pay all required dues and assessments on said certificate so that said clerk would each month present the official receipt showing the amount of such dues to the bank, and the bank would accept said receipts and pay said clerk the amount called for therein and place such receipts among the canceled checks of J. D. Johnson. That arrangement was observed and acted upon by all of the parties, through a period of more than twenty years, from 1908 until the month of October, 1929, during all of which time the dues and assessments of J. D. Johnson, $2.20 per month, were paid by said bank to the clerk of said Brownwood Camp.

From about the year 1923 until his death on the 11th day of January, 1930, the said J. D. Johnson and his wife lived at Vance in Real county about 200 miles from Brownwood. During that time they were both teaching in the schools at Vance, and they usually spent their summer vacation in Brownwood where they owned real property. During one of those visits in the summer of 1929 Mrs. Johnson advised the First National Bank in Brownwood that, on account of her husband's failing health, she from that time would be compelled to attend to writing all checks and attend to all of their business affairs.

In August, 1929, while Johnson and his wife were so in the city of Brownwood, the said bank, for some cause, notified B. H. Garrett, who was then clerk of said Local Camp No. 45, and who had been such for ten years, that it would not further honor his receipts for payment of Woodmen dues, as it had been doing without written authority from the members so to do, but the said bank would give the clerk time to notify the members and secure written authority for payment before putting that plan into effect. Though Johnson and his wife were in Brownwood at the time and the bank was advised of the condition of his failing health, they were not advised by either the bank or said Garrett of the bank's changed attitude, and they returned to Vance without any knowledge of the bank's demand for a new arrangement.

The clerk, B. H. Garrett, mailed to Johnson and wife a printed card to be signed by Johnson authorizing the bank to make payments, but, as they only desired the bank to pay the dues and assessments, and they thought it gave too much authority, they declined to sign the card, and Mrs. Johnson wrote and mailed to the bank a letter authorizing the bank to pay the dues and assessments on presentation of the clerk's receipts. That letter was either not received or was overlooked by the bank. The clerk, Garrett, claimed that he mailed that card on the 10th day of August, 1929, while Mrs. Johnson testified that it was not received by her until about the middle of October, 1929.

About the 13th day of August, 1929, the said clerk presented to the bank his receipt for $2.20 covering the dues and assessment for the month of August, and it was promptly paid by the bank. The dues for the month of September were likewise paid by the bank on the 20th day of September, 1929, but, when the clerk presented his receipt for the October dues, the bank refused payment, and the dues for November and December were never paid. While there is a conflict between the testimony of the clerk and that of Mrs. Johnson on that issue, we feel bound by the findings of the trial court to the effect that the clerk never notified Johnson and his wife that the bank had failed to make those payments and that they acted in good faith believing that the payments had been made without being advised otherwise until after the death of J. D. Johnson.

The constitution and by-laws of the Sovereign Camp, Woodmen of the World, provided that the sovereign clerk shall be the recording, corresponding and accounting officer of the Sovereign Camp, and, as soon as the required monthly report has been received from a camp, he shall mail a letter to the last known address of any member reported as suspended by said report, informing him of the laws of the society to become reinstated. The address of Johnson and his wife at Vance was well known, but no notice was ever mailed to him by the sovereign clerk. During all of the time J. D. Johnson was away from Brownwood, he kept a deposit in said First National Bank, and at the time the bank refused such payments he had over $300 there to his credit.

Mrs. Cora Johnson filed this suit in the district court of Brown county against the Sovereign Camp, Woodmen of the World, and, in the alternative, against the First National Bank of Brownwood, Tex., to recover on the beneficiary certificate for $2,000 issued to her husband, Jonathan D. Johnson, on October 5, 1898, as aforesaid, alleging that her husband died on the 11th day of January, 1930.

The Sovereign Camp, Woodmen of the World, in its answer, alleged that the beneficiary certificate had lapsed and become void because of the nonpayment of dues for the months of October, November, and December, 1929, while Mrs. Johnson, the plaintiff, contended that the Woodmen of the World was estopped to claim a forfeiture on the certificate.

Upon trial of the case before the court without a jury, judgment was rendered in favor of Mrs. Johnson against the Sovereign Camp, Woodmen of the World, for the sum of $1,212.68 (it being agreed that such amount was due upon the certificate if it was in force), and it was further ordered, adjudged, and decreed that the said plaintiff take nothing against the First National Bank of Brownwood, Tex.

From that judgment the Woodmen gave notice of appeal, and, making the First National Bank of Brownwood a party thereto, in due form perfected its appeal to the honorable Court of Civil Appeals of the Third Supreme Judicial District. 64 S.W.(2d) 1084. The plaintiff Cora Johnson did not appeal from the judgment in favor of the bank, and she has made no assignment of error.

For a reversal of the judgment of the trial court, the Woodmen relied, principally, upon two grounds: (1) That, because of its by-laws and constitution, the clerk of the local camp could not, by any act or omission, estop the head camp, since acts of said clerk could not be binding upon said head camp; (2) admitting all of the facts claimed and proven by the plaintiff to be true, such facts were not sufficient, as a matter of law, to constitute an estoppel as against said Woodmen order. Against the first contention, the Court of Civil Appeals held that, being expressly authorized to collect dues and assessments from members while so in the discharge of such duties, the Sovereign Camp was bound by his acts, but on the second ground reached the conclusion that the trial court erred in holding that the conduct of the local clerk was sufficient to raise an estoppel.

On the 31st day of May, 1933, the Court of Civil Appeals, in pursuance of its opinion,...