Sovereign Camp, W.O.W. v. Brownrigg

• Decision Date: 17 October 1935
• Docket Number: 6 Div. 777
• Citation: 231 Ala. 162,163 So. 786
• Parties: SOVEREIGN CAMP, W.O.W., v. BROWNRIGG.
• Court: Alabama Supreme Court

163 So. 786

231 Ala. 162

SOVEREIGN CAMP, W.O.W., v. BROWNRIGG.

6 Div. 777

Supreme Court of Alabama

October 17, 1935

Rehearing Denied Nov. 7, 1935

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action to recover disability benefits by Charles H. Brownrigg against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Provision of by-laws of fraternal benefit society issuing disability certificate providing for payment of annual assessment, and that insured on attaining age of 70 is physically disabled might surrender certificate for cancellation and receive designated disability benefits, held not to require insured to continue payment of dues and assessments beyond disability after reaching age of 70 during life of certificate upon election to surrender certificate and accept benefits.

Plea 3 is as follows:

"The defendant for further answer says that it is a Fraternal Benefit Association, with a lodge system, a ritualistic form of work, a representative form of government, without capital stock, and transacting its business without profit and for the sole benefit of its members and their beneficiaries, and the certificate herein sued on contained the following:

" 'This certificate is issued and accepted subject to all the conditions on the back hereof and this certificate, together with the Articles of Incorporation the Constitution and Laws of Sovereign Camp of the Woodmen of the World, and the application for membership and medical examination shall constitute the contract between the Order and the member, and any changes additions or amendments to the Articles of Incorporation, Constitution and Laws hereafter made or enacted shall bind the member herein named and his beneficiaries and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior thereto and were in force at the time of his application for membership, also subject to the By-laws of the Camp of which he is a member.'

"And the Constitution and By-laws of the defendant Association that are now in force and effect and were in force and effect at the time the suit herein was filed contains the following provisions:

" 'Sec. 63, 1931 Constitution, Laws and By-laws.

" '(a) In order to accumulate and maintain funds for the payment of the benefits stipulated in beneficiary certificates held by the members of this Association, as and when such benefits accrue, to maintain the reserves thereon and to provide for the payment of the expenses of the Association, every member of this Association shall pay to the Financial Secretary of his Camp one annual assessment each year or one monthly installment of assessment each month, as required by these laws or by the provisions of his beneficiary 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.

" '(b) If he fails to make any such payments on or before the last day of the month he shall thereby become suspended, his beneficiary certificate shall be void, the contract between such person and the Association shall thereby completely terminate, and all moneys paid on account of such membership shall be retained by the Association as his liquidated proportionate part of the cost of doing business and the cost of the protection furnished on the life of said member from the delivery of his certificate to the date of his suspension.'

"And the defendant avers that the certificate holder, Charles H. Brownrigg was at the time of the institution of this suit in default in the payment of his assessments as provided by the Certificate, Constitution and Laws and By-laws of the defendant Association, and had in accordance with the said Constitution, Laws and By-laws of the defendant Association become suspended for non-payment of his assessments and dues, and said certificate sued upon had become null and void. Wherefore the defendant is not indebted to the plaintiff for any disability benefit."

Plea 4 is identical with plea 3, except that it alleges plaintiff failed to pay the assessment on the certificate sued on for the month of May, 1933, and that the certificate became null and void on the 1st day of June, 1933.

Plea 5 is likewise identical with plea 3, except that it alleges plaintiff failed to pay assessment for the month of June, 1933.

Plea 6 is the same as plea 3, except that it alleges a failure to pay assessments for the months of May and June, 1933, or subsequent assessments.

Replication 2 alleges that defendant waived the defense attempted to be set up in its pleas in this:

"That one H.W. McArthy, an agent or servant of the defendant, who was then and there acting within the line and scope of his employment and with full authority, being thereunto duly authorized by the defendant, and with full knowledge of all the facts set up in said pleas, and with full knowledge that the plaintiff had been suspended from membership in Camp No. 81 of the defendant at Bessemer, Alabama, after May 31, 1933, and with full knowledge of the fact that the plaintiff was totally, permanently, physically, disabled by reason of old age and claimed to be over the age of seventy years, on June 19, 1933, wrote the following letter to F.L. Sullivan, financial secretary of said Bessemer Camp:

" 'Re: C.H. Brownrigg

" 'Esteemed Sovereign:

" 'Your letter of June 8th addressed to Mr. De E. Bradshaw, President has been referred to this Department for attention.

" 'We note your statement that this member is over seventy years of age. This does not agree with the statement of the date of his birth given in his original application for membership in this Association. Before we can give you any definite information regarding the provisions of his certificate, it will be necessary for you to forward to this office the sworn statement of some member of his family made from the family records or as a matter of family knowledge giving his correct date of birth.

" 'Fraternally yours,

" 'Claim Department

" 'By H.W. McArthy.'

"It is alleged that this letter was duly received by the addressee; and that on July 6, 1933, said agent, while acting as aforesaid, wrote the following letter to said Sullivan:

" 'Re: Charles H. Brownrigg

" 'Esteemed Sovereign:

" 'In accordance with your request of June 8th addressed to Mr. De E. Bradshaw, President, we are herewith enclosing a form to enable the above named to make application for the modified disability benefit available under Certificate No. 46794 upon the surrender and cancellation of his certificate.

" 'He may receive this benefit in one sum of $375.48, or in ten equal annual payments of $42.48; or he may apply for a certificate of paid-up insurance, based on the amount of the modified disability benefit, relieving him of all further payments or assessments and assuring the payment of the amount of paid-up insurance to his beneficiary at his death.

" 'In the event this member does not desire the benefit paid in ten equal annual installments, kindly correct the application form to conform with his wishes.

" 'Fraternally yours,

" 'Claim Department

" 'By H.W. McArthy.

" 'P.S. The prompt payment of all monthly installments of his annual assessment must be continued until his disability claim is actually allowed and paid.'

"It is alleged that this letter was duly received by the addressee; that defendant well knew that said letters would induce plaintiff to incur trouble and expense, and that he did so incur trouble and expense in having affidavit prepared by a notary,

health certificate prepared by a physician, in executing application and other papers and sending to defendant, and in paying the dues or assessments set out to the local financial secretary, which, or a portion thereof, were accepted by defendant from said financial secretary and retained by it with knowledge aforesaid.

"It is further alleged that sometime in September, 1933, defendant failed or refused to pay the amount due plaintiff as modified disability benefits, acting through McArthy, its agent aforesaid; and that one Yates, an agent or servant of defendant, duly authorized and acting within the line and scope of his employment, and with full knowledge of all the facts, on September 8, 1933, refused to accept any further or additional premiums falling due under the certificate in suit, and said Sullivan, as financial secretary aforesaid, on September 30, 1933, refused to accept any further payment of premiums and to give an official receipt therefor; since which time plaintiff has not been advised of defendant's willingness to accept further payments."

Replication 3 alleges that said Yates, as such agent of defendant, with full authority and acting within the line and scope of his employment, with full knowledge of all the facts, and that plaintiff had been suspended as a member of the local camp and was then totally and permanently disabled and claiming to be over seventy years of age, and with knowledge of the fact that plaintiff had paid to said Sullivan on July 18, 1933, the total sum due and...