Sovereign Camp, W. O. W. v. Rodriguez

• Decision Date: 21 February 1923
• Docket Number: (No. 6900.)
• Citation: 249 S.W. 266
• Parties: SOVEREIGN CAMP, W. O. W., v. RODRIGUEZ et al.
• Court: Texas Court of Appeals

249 S.W. 266

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

(No. 6900.)

Court of Civil Appeals of Texas. San Antonio.

February 21, 1923.

Rehearing Denied March 21, 1923.

Appeal from District Court, Gonzales County; C. K. Quin, Judge.

Action by Petra Rodriguez and others against Sovereign Camp, Woodmen of the World. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for plaintiff for only the amount of premium paid.

E. D. Henry, John H. Bickett, Jr., and L. M. Bickett, all of San Antonio, for appellant.

J. C. Romberg and W. B. Green, both of Gonzales, for appellees.

FLY, C. J.

This is a suit on a beneficiary certificate for $1,000 issued by appellant to Jose Rodriguez on March 13, 1921; appellees, Petra Rodriguez, Refugia Rodriguez, and Florencio Rodriguez being the beneficiaries named in said certificate. It was alleged that Jose Rodriguez died on March 19, 1921, and that Refugia was his widow, Florencio his son, and Petra his sister. The cause was heard without a jury and judgment rendered in favor of appellees for the sum of $1,000, one-third of which was ordered to be paid into the registry of the court as the share of the minor, Florencio Rodriguez.

The court filed his findings of fact from which it is gathered that the certificate of insurance was delivered to the deceased, Jose Rodriguez, by the clerk of the local camp; that the application for the certificate was made when deceased was in good health, but when the certificate was delivered to deceased he was in bed sick and remained on said sick bed until his death on March 19, 1921, six days after the certificate was delivered and the same signed by deceased. The judge found that deceased did not know the contents of the instrument and was ignorant of the provisions of the constitution and bylaws of the society. The application for insurance recited that no member was authorized to deliver the certificate unless the applicant was in good health. It was also provided in the certificate that the certificate should constitute the agreement between the parties, and that the society should not be bound unless certain conditions were complied with by the applicant, among the number being that there had been "manually delivered into his hands, in person, this beneficiary certificate, while in good health." Again it is provided:

"The liability of the sovereign camp for the payment of benefits on the death of the member shall not begin until after his application shall have been accepted by a sovereign physician. Been obligated or introduced by a camp or an authorized deputy in due form; had delivered to him, in person, this beneficiary certificate while in good health. The foregoing are hereby made a part of the consideration for, and are conditions precedent to, the liability for the payment of benefits in case of death. The noncompliance with any of the several conditions precedent named herein shall be an absolute bar to any claim on the beneficiary fund of this society, under or by virtue of this certificate, or by reason of any steps taken by applicant to entitle him to the same, or by a subordinate camp or member thereof, and no deputy, officer or member of the sovereign camp or subordinate camp has any authority to change, alter, modify or waive the foregoing requirements or the consequences thereof in any manner."

It is further reiterated:

"No officer, employee, or agent of the sovereign camp, or of any camp, has the power, right or authority to waive any of the conditions upon which this beneficiary certificate is issued, or to change, vary or waive any of the provisions of the constitution and laws of the society, nor shall any custom on the part of any camp or any number of camps, with or without the knowledge of any sovereign officer, have the effect of so changing, modifying, waiving or foregoing such laws or requirements. This beneficiary certificate is issued only upon the conditions stated herein and subject to the constitution and laws of the society now in force or hereafter enacted."

The constitution and laws were made a part of the beneficiary contract.

The certificate contains a warranty, which was signed by Jose Rodriguez, as follows:

"I have read the above certificate No. S288348D of the Sovereign Camp of the Woodmen of the World and the conditions named therein, and hereby agree to and accept the same as a member of camp No. 3492, state of Texas, this 13th day of March, 1921, and warrant that I am in good health at this time, and have not been sick or injured since the date of my application and that all requirements of the constitution and laws of this society have been complied with."

It was proved that Jose Rodriguez did not road that warranty, but was supported in bed by Hernandez, the clerk of the local camp, while he signed the warranty, and the certificate was given to the sick man, and he took it and placed it under his pillow.

The only questions presented by the appeal are, did the local clerk have the power and authority to waive the warranty of good health when the certificate was delivered, and, is the appellant estopped from claiming exemption from liability by reason of the acts of the local clerk in giving the deceased the certificate and in accepting money from him?

If the constitution and laws...