Sovereign Camp, W. O. W. v. Bailey

• Decision Date: 18 November 1925
• Docket Number: (No. 3030.)
• Citation: 277 S.W. 782
• Parties: SOVEREIGN CAMP, W. O. W., v. BAILEY.
• Court: Texas Court of Appeals

277 S.W. 782

SOVEREIGN CAMP, W. O. W., v. BAILEY.

(No. 3030.)

Court of Civil Appeals of Texas. Texarkana.

November 18, 1925.

Rehearing Denied December 3, 1925.

Appeal from District Court, Dallas County; Town Young, Judge.

Action by Mrs. Kate C. Bailey against Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

The suit is by appellee, the beneficiary, upon a benefit certificate issued to her deceased husband by the appellant. It is alleged that at the time of his death the deceased had fully paid all the dues and assessments on the certificate, and that all provisions in the certificate had been complied with and the certificate was in full force and effect. This is denied in the answer. The appellant pleaded that the deceased had allowed his certificate to lapse and become null and void under the laws of the order by reason of his nonpayment of the regular dues and assessment for May, 1922, before the expiration of the said month of May, and that he had not been reinstated under the laws of the order, and that the order was under no obligation to reinstate him because on the tenth day after the suspension he was stricken with a disease which eventuated in his death within eight days. The appellee, in reply, pleaded waiver of forfeiture for nonpayment of dues and assessment within the prescribed time by accepting payment of the same unconditionally after that time, and estoppel from asserting forfeiture of the right to benefits under the certificate. The case was tried upon an agreed statement of facts, and thereupon the court concluded that judgment should be entered in favor of the appellee.

The appellant society is a fraternal beneficiary association having a lodge system with a representative form of government. J. F. Bailey, the husband of appellee, became a member of the order in November, 1897, at the age of 43 years. A benefit certificate was issued to him for $2,000, payable to his wife. The certificate contained the agreement of the insured to make prompt payment of all dues and assessments and to comply with and conform to all the laws, rules, and usages of the order. The insured died on June 18, 1922, and proof of his death was made in the manner required by and upon forms furnished by appellant. The officers of the Sovereign Camp received the proofs of death on July 12, 1922; and nine days afterwards, on July 21, 1922, wrote and mailed to appellee a letter notifying her that the claim made was refused upon the grounds "that he (the insured) was under suspension at the time of his death," and "that he was never legally reinstated after his suspension of June 1, 1922." In the same letter the Sovereign Camp inclosed a draft drawn on its bank for $4.32. The draft bore the notation, "Money refunded acct. James F. Bailey." The appellee received the letter. The $4.32 was the return of the assessments proffered for reinstatment. The suit was filed on January 25, 1923.

The following agreed facts appear:

"That the said James Franklin Bailey, the insured in said certificate named, died on the 18th of June, 1922, and that he was a member in good standing in the defendant order up to and including midnight of May 31, 1922. That whether he was a member therein in good standing at the time of his death is a disputed issue in this case, the plaintiff claiming that he was, and defendant denying it.

"That during the year 1922 the said James Franklin Bailey resided in Dallas, Tex., and was a member of Lone Star Lodge No. 2 of defendant, located at Fort Worth, Tex., and that on June 10, 1922, a postal money order was purchased in Dallas and mailed on the same date to the clerk of Fort Worth Lodge for the full amount of the May dues, for both Sovereign and local camps. That the same was received by the clerk on the 12th day of June, 1922, and a receipt was issued by him on said last-named date therefor and mailed to defendant at Dallas, Tex.

"That on June 17, 1922, a post office money order covering the June dues for 1922 was mailed to the clerk at Fort Worth, which was by him duly received and receipt issued therefor and mailed on June 19, 1922.

"That during the year 1919 the said James Franklin Bailey paid his May dues on June 2d; that he paid his July dues on August 11th; that he paid his August dues on the 4th of September; that he paid his September dues on the 3d of October; and that he paid his December dues on the 1st day of January, 1920; that during the year 1920 he paid his January dues on the 7th of February; that he paid his February dues on the 1st of March; that he paid his September dues on the 1st day of October, and that he paid his December dues on the 1st day of January, 1921; that for the year 1921 he paid his February dues on the 3d of March; that he paid his April dues on the 2d day of May; that he paid his July dues on August 1st, and his December dues on the 2d day of January, 1922; and that during the year 1922 he paid his March dues on the 1st of April; that he paid his April dues on the 1st day of May; that his May and June dues for that year were paid as hereinabove recited. That all of the dues aforesaid, with the exception of the May and June dues for 1922, were retained by the Sovereign Camp of the Woodmen of the World without any objection whatever made known to the insured or the beneficiary in said certificate named, and that all dues for said years were paid by mail from Dallas, Tex., to the clerk of Lone Star Lodge at Fort Worth.

"It is further agreed that not only sovereign Bailey made payments of his monthly dues after the current month for which they were due as has above been set out, but that it is, and has been for some time, a general practice of a great many of the members of Lone Star Lodge to do likewise.

"It is admitted that said draft was received by plaintiff on July 24, 1922, and that she refused to accept the same and immediately returned it to the general attorney of the defendant, who personally mailed the same to her.

"That on the 21st day of July, 1922, the general attorney of the defendant in this case wrote a letter to the clerk of the local camp at Fort Worth.

"That on the 24th day of July, 1922, the clerk of the local camp at Fort Worth mailed to the plaintiff in this case two checks; one for the sum of $4.32, which he claimed to be a refund of the June dues for the year 1922, and a second check for fifty cents (50¢), which was mailed on same date as a refund of May and June local dues; a copy of which checks are hereto attached, marked `Exhibit D' and made a part hereof. That the same were received by the plaintiff in this case on July 25, 1922, and immediately returned to the sender. That at the time all the checks in this case were mailed to the plaintiff the Sovereign Camp had received notice of the death of the said James F. Bailey. That no objection was made, at the time said dues were paid, as to the time of their payment. That the first objection on the part of the defendant in this case to the time or manner of the payment of the dues was the receipt by the plaintiff in this case of the checks hereinabove set out and the letters accompanying same.

"It is further agreed that the deceased, J. F. Bailey, was first taken sick with the illness which caused his death on June 10, 1922; that he received medical attendance on said date; and that he died of said illness on June 18, 1922.

"It is further agreed that at no time that any dues were paid by the insured, and especially the May and June dues of 1922, was any verbal or written representation whatever made to the defendant or the local lodge at Fort Worth, or to any one else, as to the condition of the health of the insured, and that no request or demand was made upon him, or any one representing him, by any person for a certificate concerning his health, or that he was in good health.

"It is further agreed that at the time of the receipt of the said May and June dues for 1922 by said clerk at Forth Worth, Tex., said clerk had no knowledge whatsoever of the condition of the health of the said Bailey.

"It is further agreed that none of the officers of the Sovereign Camp had actual knowledge of the fact that James F. Bailey's dues had been paid for May, 1922, as has been in paragraph 3 hereinabove set out, and did not actually know of that fact until it received proof of death of said Bailey on July 12, 1922; nor did they have actual knowledge of the fact that said James F. Bailey paid any of his dues after same became delinquent, as set out in paragraph 6 hereof. It is further agreed that the clerk of Lone Star Lodge did not make remittances and report of collection of dues for May, 1922, to the Sovereign Camp until June 12, 1922, and that said remittance and report included the dues of James F. Bailey for May, 1922, made as hereinabove set out."

The laws of the order, as shown, appear as follows:

"Sec. 63. (a) Every member of this society shall pay to the clerk of this camp one annual assessment or one monthly installment of assessment as required by these laws or by the provisions of his certificate, which shall be credited to and known as the Sovereign Camp fund, and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay any additional Sovereign Camp fund and camp dues, or either, which may be legally called.

"(b) If he fails to make any such payments on or before the last day of the month he shall stand suspended, and during such suspension his beneficiary certificate shall be void.

"Sec. 64. A member suspended for nonpayment of assessments or dues is not entitled to any benefits of this society. He shall not be entitled to receive the passwords nor to participate in any of the business or social proceedings of his camp. He may be admitted at a meeting only to pay his arrearage and must retire if he fails to do so.

"Sec. 65. No suspended member shall be reinstated whose health...