Sovereign Camp, W. O. W. v. Jackson

• Decision Date: 16 April 1924
• Docket Number: (No. 6654.)
• Citation: Sovereign Camp, W. O. W. v. Jackson, 264 S.W. 289 (Tex. App. 1924)
• Parties: SOVEREIGN CAMP, W. O. W., v. JACKSON et al.
• Court: Texas Court of Appeals

264 S.W. 289

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

(No. 6654.)

Court of Civil Appeals of Texas. Austin.

April 16, 1924.

Rehearing Denied June 4, 1924.

Appeal from Williamson County Court; A. S. Fisher, Special Judge.

Action by Ellen Jackson and husband against the Sovereign Camp, Woodmen of the World.Judgment for plaintiffs, and defendant appeals.Reformed on condition of remittitur.

De E. Bradshaw, of Omaha, Neb., and White, Wilcox, Graves & Taylor, of Austin, for appellant.

Wilcox & Graves, of Georgetown, for appellees.

COFER, Special Chief Justice.

This action was brought by appellee, Ellen Jackson, joined pro forma by her husband, against appellant, to recover upon a benefit certificate issued by it to Manton M. Parsons, brother of said appellee, she being named as beneficiary therein.The contract provided that, if insured died within one year from its date, appellant would pay $500 to the beneficiary; if within two years, $750; and if afterward, $1,000, and further that appellant would contribute $100 to a monument to be erected over the grave of insured, provided the said certificate was in force at the time of his death and he was in good standing.Attached to the said certificate were a number of conditions, made a part thereof, and to all intents as binding as the certificate itself.The condition material upon this appeal reads as follows:

"Fifth.In the event the holder of this certificate shall die while serving in any branch of the United States Army or Navy, either as an officer or enlisted man, outside the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality.

"Provided that, should the holder of this certificate so desire, he may within thirty (30) days after entering the service in any branch of the United States Army or Navy, as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America and pay in advance to the sovereign clerk, for the society, the sum of $37.50 (thirty-seven and 50/100 dollars) per $1,000 insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign camp of the Woodmen of the World; and upon so doing at the death of the member or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries.

"Provided, further, that should any member of this society who has entered the service of the United States Army or Navy, either as an officer or enlisted man, pay the additional war risk of $37.50 per $1,000 per annum and die in the United States, without having served outside the boundaries of the United States of America, the total amount paid by him as war assessments shall be refunded to his beneficiary or beneficiaries."

The insured was a young man within the age of enlistment, and when our nation joined the allies and declared war upon Germany in 1918he responded promptly to this sublime call of duty, joined the army as an enlisted man; and within one year from the date of the benefit certificate died upon the friendly shores of Scotland, outside the boundaries of the United States.Neither the soldier nor any one for him had paid the additional $37.50 mentioned in the foregoing proviso, or any part thereof.It would seem that he only owed $18.75 additional war risk premium, since his insurance for the first year was only $500.Nevertheless this was not paid, and we are constrained to hold, much against what we would like to do, the condition, harsh though it be, binding upon insured and his beneficiary.

We do not doubt that the young soldier died in the confident belief that his sister was secured in the sum of $500 by this certificate.Doubtless he failed to read his policy, and was unaware of this condition.It belongs to that class of conditions and provisions in insurance policies called lurking conditions and provisions by some of the courts.However, it was plainly written in the conditions annexed to his certificate, which he accepted in writing duly signed.Immediately upon proof of death, appellant claimed the benefit of the condition, figured out the proportional amount due thereunder to be $25.63, and tendered same to plaintiff, thus "keeping the word of promise to the ear whilst breaking it to the hope."Of this tender the sum of $21.26 is the proportion for the $500 benefit.Under the law that is the limit of liability, unless appellant has waived the condition, as appellees contend.

We know of no case in Texas, and have been cited to none, where this condition has been passed upon by the appellate courts.In several of the sister states this identical W. O. W. war risk condition and similar ones in policies of other companies have been before the courts.Uniformly the condition has been upheld and enforced.It has been held not to violate any rule of public policy.It has been held to apply to both drafted soldiers and volunteers.The condition has been unsuccessfully attacked from several angles.Sovereign Camp, Woodmen of the World v. Griffin, 30 Ga. App. 217, 117 S. E. 261;Sovereign Camp, Woodmen of the World v. Peaugh, 150 Ark. 176, 234 S. W. 161;Sovereign Camp, Woodmen of the World v. Ricks, 26 Ga. App. 374, 106 S. E. 185;Railey v. United Life & Accident Co., 26 Ga. App. 269, 106 S. E. 203;McQueen v. Sovereign Camp, Woodmen of the World, 115 S. C. 411, 106 S. E. 32;Millie Jones v. Sovereign Camp, Woodmen of the World (Louisiana Appeals); Carlton v. Sovereign Camp, Woodmen of the World (Ohio Appeals).

We hold with these authorities that the condition was legal and one which the parties had a right to make, and, having embodied it in their written contract, it is binding and enforceable.

Nor do we believe that the record discloses that the condition has been waived.The record does not contain the findings and conclusions of the learned trial judge, and we are unable to discover the theory upon which judgment was rendered for plaintiff.It would be our duty to uphold the decision if it has support in the testimony upon any reasonable and legal theory.Walker v. Cole, 89 Tex. 323, 34 S. W. 713;Id.(Tex. Civ. App.)27 S. W. 882;Daniel v. De Ortiz(Tex. Civ. App.)140 S. W. 486.

It is contended that the condition and payment of the extra war risk assessment of $37.50 were waived by the officers of the local camp.Considerable evidence appears in the statement of facts showing that appellee and her husband before the death of insured made application to the regular local camp officers of appellant's lodge to ascertain whether the benefit certificate was in good standing, and were assured that it was, and that all dues of every character had been paid.The difficulty here is that the constitution and by-laws of appellant, to which insured had subscribed and agreed when he became a member, expressly provide that the local camp officials shall not have authority to waive any condition in the benefit certificates of members.The statute expressly authorizes fraternal insurance orders to enact such by-laws.Vernon's Sayles' Ann. Civ. St. 1914, art. 4847.It is well settled that local officials of subordinate insurance lodges are special agents with limited powers, and have no authority as such to bind the head camp or authorities of such lodge by agreements, representations, or acts of estoppel outside the scope of their limited agency.Sov.Camp, W. O. W. v. Wernette(Tex. Civ. App.)216 S. W....