Odd Fellows' Benefit Ass'n v. Smith

• Decision Date: 08 April 1912
• Docket Number: 15444
• Citation: 58 So. 100,101 Miss. 332
• Court: Mississippi Supreme Court
• Parties: ODD FELLOWS BENEFIT ASSOCIATION v. CELIA SMITH

58 So. 100

101 Miss. 332

ODD FELLOWS BENEFIT ASSOCIATION v. CELIA SMITH

No. 15444

Supreme Court of Mississippi

April 8, 1912

APPEAL from the circuit court of Lauderdale county, HON. J. L BUCKLEY, Judge.

Suit by Celia Smith against the Odd Fellows Benefit Association.

From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

Cassedy & Butler, for appellant, filed an elaborate brief too long for publication contending:

1st. That the custom and course of dealings upon which assured relied did not work an estoppel, and,

2d. That assuming that a custom and course of dealings was shown with reference to the acceptance of past due assessments by the local secretary that this does not work an estoppel under the facts in this case, citing: Cooley's Briefs on Insurance, 2496-2499 and 2502-2504; Bacon, Ben. Soc., 434; Harvey v. Grand Lodge, 50 Mo.App. 473; Graves v Modern Woodmen, 85 Minn. 396; Elder v. Grand Lodge, 79 Minn. 468; Royal Highlanders v Scovell, 66 Neb. 213, 4 L. R. A. (N. S.) 421; Field v. National Council, 64 Neb. 226; Knights of Honor v. Oeters, 95 Va. 610; Bargrafe v. Knights of Honor, 22 Mo.App. 127; Williams v. Relief Assn., 89 Me. 158; Chadwick v. Triple Alliance, 56 Mo.App. 463; Knights of Honor v. Keener, 6 Tex. Civ. App. 267; Knights of Honor v. Jones, 69 N.E. 718; Lavin v. Grand Lodge, 78 N.W. 325; United Moderns v. Pike, 76 S.E. 774 (Tex.) ; Adams v. Grand Lodge, 92 N.W. 588; Doyl v. Royal Circle, 99 Mo.App. 349; Woodmen v. Rothschild, 15 Tex. Civ. App. 463; Supreme Council v. Taylor, 121 F. 66; Lewis v. Mutual Life Ins. Co., 44 Conn. 72; Thompson v. Knickerbocker Insurance Co., 104 U.S. 256; Hartford Life Insurance Co. v. Unsell, 144 U.S. 349; Morgan v. Jacobs, 90 Miss. 872; Association v. McConico, 53 Miss. 233; Rivara v. Insurance Co., 62 Miss. 720; Morgan v Jacobs, 90 Miss. 864; Railroad Company v. Swanson, 92 Miss. 485; Busby v. Railroad, 90 Miss. 13; Robinson v. Thompson, 74 Miss. 847; Everman v. Herndon, 71 Miss. 823; Crossman v. Mass. Ben. Assn., 143 Mass. 435; Harvey v. United Workmen, 50 Mo.App. 472; Mutual Life Ins. Co. v. Girard, 100 Pa. St. 172; Marston v. Life Ins. Co., 59 N.H. 92; Knights of Honor v. Jones, 69 N.E. 218; Smith v. Life Ins. Co., 63 F. 772; Lantz v. Life Ins. Co., Pa. St. 546, 10 L. R. A. 577; Helme v. Philadelphia L. Ins. Co., 61 Pa. 107; Rapp v. Palmer, 3 Watts. 178; Want v. Blunt, 12 East. 183; Lycoming F. Ins. Co. v. Rought, 97 Pa. 415; Hummel's App., 78 Pa. 293; Washington Mut. F. Ins. Co. v. Rosenberger, 84 Pa. 373; Crawford County Mut. Ins. Co. v. Cochran, 88 Pa. 230; Pritchard v. Merchants & T. L. Assur. Soc., 3 C. B. N. S. 622; Mutual Ben. L. Ins. Co. v. Ruse, 8 Ga. 534; Marvin v. Universal L. Ins. Co., 85 N.Y. 282; Dean v. Aetna L. Ins. Co., 62 N.Y. 642; Tennant v. Travelers' Ins. Co., 31 F. 322; Church v. La. Fayette F. Ins. Co., 66 N.Y. 222; New York L. Ins. Co. v. Eggleston, 96 U.S. 572, 24 L.Ed. 841; Phoenix Mut. L. Ins. Co. v. Dester, 106 U.S. 30, 27 L.Ed. 65; Universal F. Ins. Co. v. Block, 109 Pa. 535, 1 Cent. 554; Lebanon Mut. F. Ins. Co. v. Humes, 113 Pa. 591, Cent. 211; Morgan v. Jacobs, 90 Miss. 872; Reisz v. Supreme Council, 103 Wis. 432; Beaty v. Mut. L. Assn., 93 F. 747.

Cochran & McCants, for appellee.

The sole question presented to the court for its determination by the record in this case is the question of a waiver as to the time of the payment of the monthly assessments. The verdict of the jury eliminated all issues of fact, and we deem it wholly unnecessary to file any extended brief.

In addition to the authorities in the cases decided by our own court, which we will refer to later, the following authorities hold that in matters of collecting and remitting assessments and waiving of forfeitures, the secretary of the local lodge in the instant case was the agent of appellant. Modern Woodmen v. Coleman, 64 Neb. 162; Supreme Lodge K. of P. v. Withers, 177 U.S. 260; Supreme Tribe of Ben Hur v. Hall, 79 Am. St. Rep. 262; Coverdale v. Royal Arcanum, 193 Ill. 91; Supreme Lodge K. of H. v. Davis, 26 Col. 252; Whiteside v. Supreme Conclave, 88 F. 275; Beil v. Supreme Lodge, K. of H., 80 N.Y.S. 751; Grand Lodge, A. O. U. W., v. Leachman, 199 Ill. 140; Couberen v. Ancient Order of Pyramids, 98 Mo.App. 243; Seehorn v. Supreme Council, C. K. of A., 95 Mo.App. 233; McDonald v. Supreme Counsel, O. of C. F., 78 Cal. 49; Modern Woodmen v. Jameson, 48 Kan. 718.

"A stipulation in an insurance policy limiting the powers of its agents in respect to waivers of conditions and forfeitures is not a limitation of the power of the company to contract or to abrogate or to modify contracts or conditions intended for its exclusive benefit. It is nothing more nor less than a reservation for the benefit of the company which it may waive." Cooley's Briefs on Ins., p. 2506, and authorities cited.

"A waiver of the stipulation limiting an agent's authority need not be in express terms. The stipulation may be and often is waived by an habitual course of dealings which shows that it is not intended that the rule as written shall control but that the agent's real authority extends beyond that which is declared in the policy." Cooley's Briefs on Ins., p. 2507, and authorities cited.

"It is said that a stipulation limiting the authority of an agent has no application when the law declares a waiver by estoppel, because of the acts of the company through its agent. Such estoppels do not rest upon the power or lack of power of an agent to change the conditions of a policy or waive any of its agreements, but arise in law because of the acts of the company through its agents acting within the scope of his apparent power as its representative." Cooley's Briefs on Insurance, p. 2508, and authorities cited.

Counsel in their brief say: "The evidence indisputably shows that the secretary and treasurer of the Grand Lodge did not receive the past due April and May assessments.

We submit that there is nothing contained in the agreed statement of facts to justify this statement, because that was one of the questions necessarily involved in the finding of the jury under the instructions of the court. The jury must have found, as a matter of fact that it was the practice and the custom of the local lodge to waive the rule in reference to the time of the payment of the monthly assessments. The court will observe that according to the agreed statement of facts, the appellant admits that that was true, because it did not pretend to introduce any sort of evidence in rebuttal of the facts proven by appellee. Murphy v. Order of the Sons and Daughters of Jacob of America, 77 Miss. 830, and Morgan v. the same defendant, 90 Miss. 864, are conclusive of the question raised in this record.

Argued orally by George Butler, for appellant.

OPINION

SMITH, J.

Appellant is a mutual benefit association, organized with a system of grand and subordinate lodges. In April, 1905, appellant issued to Willis Smith, a member of its local lodge No. 3056 a benefit certificate by which it agreed to pay at his death to Celia Smith, his wife, a sum of money not to exceed one thousand dollars, provided the certificate was then in force. The failure to pay the regular monthly assessment of one dollar on or before the 15th day of the month in which it became due ipso facto worked a forfeiture of the certificate. Willis Smith died on the 20th day of June, 1910, whereupon appellee, his widow and the beneficiary in the certificate, called upon the appellant for the payment of the amount of the policy. This being refused, she instituted this suit in the court below to collect it. To her declaration appellant pleaded the general issue, and set up by way of notice thereunder that Willis Smith failed to pay his assessments for April, May and June, 1910, and that consequently he thereby became suspended and the certificate forfeited. To this notice appellee replied that she would introduce evidence to prove "that it was the practice and custom of the secretary of lodge No. 3056 not to insist upon a literal compliance with the rules of the association in reference to the time of the payment of assessments due by its members, and that it was and is the custom and practice of the said secretary of said lodge to waive the time of payment of assessments by the deceased, Willis Smith, and the other members of said lodge, and accept double payments of assessments for two months after the expiration of one of said months, and that said practice of waiving the rule in reference to the time of the payments of the assessments was practiced and indulged by the secretary of said lodge and by said lodge at the time of the death of the said Willis Smith. The plaintiff will further introduce evidence to prove that the deceased, Willis Smith, on the day of May, 1910, paid to the local secretary of said lodge his dues for the months of April and May of said year, and the secretary accepted the payment of said dues for said months, and had not returned the same to the said Willis Smith, or his representatives, and that said Willis Smith departed this life on or about the 20th day of June, 1910, and that shortly after his death, and during the month of June of said year, Will Smith tendered to the secretary of said lodge the assessment of said Willis Smith for the said month of June, which tender was by the secretary declined and refused. The plaintiff will insist that the defendant is estopped from setting up a literal compliance with its rules in reference to the payment of assessments by the deceased and its other members as a defense to this action, and here and now tenders the defendant one dollar, the assessment due by Willis Smith for the month of ...