Knights the Maccabees of the World v. Johnson

• Decision Date: 02 January 1917
• Docket Number: Case Number: 8140
• Citation: 185 P. 82,79 Okla. 77,1917 OK 2
• Parties: KNIGHTS OF THE MACCABEES OF THE WORLD v. JOHNSON.
• Court: Oklahoma Supreme Court

1917 OK 2
185 P. 82
79 Okla. 77

KNIGHTS OF THE MACCABEES OF THE WORLD
v.
JOHNSON.

Case Number: 8140

Supreme Court of Oklahoma

Decided: January 2, 1917

Syllabus

¶0 1. Insurance-- Waiver of Forfeiture Provisions--Payment of Premiums. The first, second, and third paragraphs of the syllabus in Pacific Mutual Life Insurance Company v. McDowell, 42 Okla. 300, 141 P. 273, L.R.A. 1918E, 391, are approved and adopted herein.

2. Insurance--Recorder of Beneficiary Association Agency in Collecting Dues and Assessments. Under the facts set out in the opinion it is held that the recorder of the local branch of the mutual benefit society, in collecting the monthly dues and assessments from the members, acted as the agent of the general society, and not of the individual members, the provisions of the by-laws to the contrary notwithstanding.

3. Appeal and Error--Findings--Conclusiveness--Insurance. Where the by-laws of a fraternal society provide that no benefit shall be paid on account of the death of a member whose death occurs while such member is to any extent "under the influence of intoxicating liquors." and an action on a certificate is defended on the ground that the member died while under the influence of intoxicating liquor, the question whether the member was under the influence of liquor "to any extent" within the terms of the contract, in a cause tried to the court, was one of fact, to be determined by the court, and its finding, being supported by the evidence, is binding upon appeal to this court. On Rehearing.

4. Insurance--Reinstatement in Fraternal Benefit Society After Suspension--Rights of Beneficiary. A policy issued by a fraternal life insurance company provided that a life benefit member, suspended for the nonpayment of a monthly rate, etc., may be reinstated within a certain time by complying with the by-laws of the company. Held, that the right to reinstatement does not die with the insured, but passes to the beneficiary under the policy, and may he exercised at any time during the period of extension.

Maxey & Brown, for plaintiff in error.

Mounts and Davis and W. C. Stevens, for defendant in error.

GALBRAITH, C.

¶1 This was an action on a benefit certificate issued by the plaintiff in error to Sam W. Johnson, and payable to his wife, Willie Z. Johnson, in the event of his death. The petition alleged the issuance of the certificate in April, 1909, and the death of the member on October 5, 1915, and also a compliance with all the terms and conditions of the policy required on her part to be performed, and that the society had refused to pay, and that it therefore owed the amount of the policy and interest thereon. The company in its answer admitted the issuance of the policy and the death of the member, but denied liability on two grounds: One, that the insured was in default in the payment of dues and assessments at the time of his death; and, second, because of the terms of its by-laws, made a part of the contract of insurance, which provided that, if "the insured was to any extent under the influence of intoxicating liquors" at the time of his death, nothing could be recovered on the certificate, and that he was under the influence of liquor at the time of his death, and therefore the society was not liable. A reply was filed, denying that the insured was in default in the payment of dues and assessments at the time of his death, setting up facts relied on as a waiver of the provisions of the bylaws prescribing the time and place of paying dues and assessments, and denying that the assured was under the influence of intoxicating liquor to any extent at the time of his death. A jury was waived, and the cause was tried to the court. Findings of fact and conclusions of law made, upon which judgment was rendered in favor of the defendant in error for the full amount of the certificate and interest thereon. To review that judgment an appeal has been prosecuted to this court. The finding of the court on the first ground of defense is set out in finding No. 9, and is as follows:

"That in order to facilitate the collection of the tent and other dues, the monthly rate, and other assessments due the defendant from Sam W. Johnson, the said Sam W. Johnson made an arrangement with the State Guaranty & First National Bank of Frederick, Oklahoma, through Stanley Patten, its cashier, at the request of and by agreement with the said John B. Wilson, record keeper of the local tent of defendant at Frederick, Oklahoma, whereby all dues, special assessments, and monthly rates of said Sam W. Johnson would be paid each month when due, whenever demanded or required by said local record keeper, and that for a number of years prior and up to the time when the last monthly rate of said Sam W. Johnson was paid the said arrangement between the said bank and the said Sam W. Johnson and the said local record keeper was kept up and followed, and the monthly rate of said Sam W. Johnson always paid in time and remitted to the supreme officers within the time required by the by-laws of the order. That the said John B. Wilson considered and treated said agreement as a payment of the dues, assessments, and rates of the said Sam W. Johnson, and that the amounts of such assessments, dues, and rates were at his command and under his control at all times when the same became due by the laws of the order."

¶2 This finding is attacked by the society on the ground that it is contrary to the law and evidence, inasmuch as the by-laws of the association, which are by express terms made a part of the contract of insurance, provide that the recorder of the local tent of the society at the town of Frederick should be the agent of the member, and not the agent of the society, and therefore he had no right to waive the prompt payment of the dues and assessments, as provided in the by- laws, and that the finding made by the court in regard to the arrangement made between the recorder and Johnson, the insured, by which the dues were to be paid at the bank, was not called to the knowledge of the society, and it was therefore not bound by it. The Supreme Court of Nebraska, in Modern Woodmen of America v. Asa Coleman, 64 Neb. 162, 89 N.W. 641, make an instructive argument against the contention of the plaintiff in error in the instant case, from which we quote the following:

"Notwithstanding the cunningly devised bylaws and stipulations of beneficiary associations like the plaintiff in error, the clerks of local camps are, in the matters of collecting and remitting assessments and the waiver of forfeitures, the agents of the societies and not of the local camp or of their members. As is pointed out by Sanborn, J., speaking for the United States Court of Appeals for this circuit in Modern Woodmen of America v. Tevis, 111 F. 113 [49 C.C.A. 256], quoting from the syllabus: ''The actual legal relations of parties to each other, their acts and transactions, prevail over previous written stipulations, which were subsequently disregarded, and condition their rights. Where a beneficiary association empowers the clerk of the local camp to collect, receipt for, remit, and report upon its benefit assessments, and the clerk acts under this authority with the knowledge and consent of all parties, the relation of principal and agent for this purpose exists, and conditions the rights of the parties, notwithstanding the fact that the

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