Sovereign Camp, W. O. W. v. Garner
| Citation | 90 So. 586,127 Miss. 900 |
| Decision Date | 13 February 1922 |
| Docket Number | 22340 |
| Court | Mississippi Supreme Court |
| Parties | SOVEREIGN CAMP, W. O. W., v. GARNER |
INSURANCE. Defendant society held estopped to assert forfeiture for change of employment.
In a suit on a certificate of fraternal insurance, where the society defends on the ground that the certificate had been forfeited by reason of the assured having changed employment in violation of the provisions of the constitution and by-laws of the society, and where it is admitted that the proofs of death contained full information in reference to assured's employment at the time of his death and the length of time he was engaged in the prohibited employment and the regular premiums collected during the time assured was engaged in a prohibited employment were not refunded, and no offer to refund the same was ever made, held, that the provisions of the constitution and by-laws in reference to a change of employment were waived, and the society was estopped to assert a forfeiture of the policy.
APPEAL from circuit court of Covington county, HON. W. H. HUGHES Judge.
Suit by Mrs. Floyd Dora Garner against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and the defendant appeals. Affirmed.
Judgment affirmed.
W. U Corley, for appellant.
Where by-laws of a fraternal insurer provided that, if a member should engage in a prohibited occupation, the certificate should be void unless he gave notice and paid an additional premium, the failure of a member, who engaged in a prohibited occupation to give notice and pay the additional premium invalidated the policy without action of the insurer. Brittenham v. W. O. W., 167 S.W. 587. When he violated this part of the contract, it became null and void without any action of the appellant. Id. See, also, Easter v. Bro. of Am. Yeomen, 154 Mo. 456; Britt v. W. O. W., 134 S.W. 1073; Knode v. Modern Woodmen, 157 S.W. 818; Day v. Supreme Forest, etc., 156 S.W. 721. If appellee's contention was correct, and to admit for argument's sake that it is, then the case of Simmons v. Sovereign Camp, W. O. W., 188 S.W. 941, covers this case like a blanket.
The acts of a local agent, clerk, beyond the scope of his prescribed authority, in the absence of notice or knowledge of an acquiescence in them by some of the principal officers of the society, constitutes no waiver, estoppel or contract of the association. They were not the acts of the society and the insured and the beneficiaries were charged with knowledge of that fact. Modern Woodmen v. Tevis, 117 F. 369. See, also, Jones v. Modern, Bro., etc., 140 N.W. 1059; Bacon, Benefit Societies (3 Ed.), 434.
"A beneficial association may limit the authority of its agents by a provision in its policy, or by its by-laws; and an agent whose powers are thus limited cannot bind the association beyond the limits of his authority, by contract," etc., says the Tevis case, reported in 54 C. C. A. 293.
"The insured and the beneficiaries under a contract of a beneficial association are charged with knowledge of the limitations upon the powers of the association's agents which are found in the certificate," etc. Ib.
etc. Fraternal Tribunes v. Steel, 114 Ill.App. 194, judgment affirmed; 74 N.E. 121; 106 Am. St. Rep. 160.
No person will be allowed under the law to take advantage of their own unlawful acts. Insured knew he was violating the law of the society, and was charged with that knowledge. Where an applicant for benefit insurance, stated the facts as to his occupation, but knew the clerk inserted wrong answers, his contract was invalid and not binding, even though the agent knew all the facts. See Matheson v. Modern Sam'ts, 91 Minn. 434. "Acceptance by local lodge officers of arrearages from suspended members known to be sick, held not to waive the by-laws," etc. Hartman v. Natl. Coun., 147 P. 931.
It is the general rule that officers of a mutual insurance association have no authority to waive its by-laws so far as they relate to the substance of the contract. Crowley v. A. O. H., 110 N.E. 276.
Waiver of exemption of a fraternal benefit society from liability for death due to employment in a prohibited occupation must be by the home office where the contract is made with it. Showalter v. Modern Woodmen, 120 N.W. 994.
The case of Supreme Commandry United Order of Golden Cross, etc. v. Bernard, et al., reported in 6 Ann. Cas. on page 696, second paragraph, we find the authorities are quite in accord that where the by-laws of a fraternal and beneficial society provides for forfeiture and disconnection follows the nonpayment of an assessment, the member failing to pay must suffer the penalty. See also, Bacon, Benefit So., sec. 385; Borgraefe v. Supreme Lodge, 22 Mo. 127; Tood v. Mutual Ben. Asso., 31 F. 62; McDonald v. Ross-Lewin, 29 N.Y. 87.
We call special attention to the decisions of the United States supreme court, in case of Northern Assur. Co. v. Grand View Bldg. Asso., reported in 183 U.S. 308, 22 U.S. Rep. 133, where it is held: "That where the waiver relied on is an act of an agent, it must be shown either that the agent had express authority to make the waiver, or that the company subsequently with knowledge of the facts, ratified the action of the agent. This case also holds that it was not necessary that the agent should have notified the society.
The secretary-treasurer of a local council of a fraternal insurance order has no authority to waive the constitution and by-laws of the order as to payment of dues and assessments at maturity, and the practice of receiving payments thereafter is not binding on the order unless authorized or ratified. United Com. Trav'lrs v. Young (U.S.C. C. A.), 212 F. 132.
Acceptance of dues by a local officer of a fraternal benefit society, which are over due and from a suspended member with notice that the member was in ill health, is not a waiver. W. O. W. v. Shaw 85 S.E. 827.
The insured in this case was ipso facto suspended by his own acts. If the suspension of a member has taken place ipso facto for nonpayment of dues, an officer has no authority to waive such suspension where the constitution and by-laws specifically exclude such authority. Glaspy v. United Brotherhood, 163 Ill. 478.
Where a policy is issued to a member of a benefit society, conditioned that he be received and retained in pursuance to the rules of the order, and he is received and retained in violation, it works a forfeiture. Nat. Council U. S. A. Mech. v. Thompson, 156 S.W. 132.
The collection and retention of the dues and assessments of a member engaged in a prohibited business, by the local treasury of a benefit society, whose duties it was to collect and remit, and even though he had knowledge of it, does not waive the forfeiture on that ground, because the supreme organization of which he was a member had no knowledge of it. Brown v. G. C. etc., 132 N.W. 562.
A person becoming a member of a fraternal society is chargeable with knowledge that no officer has any authority to exempt him from any obligation common to all members. Galvin v. Knights, etc., 155 S.W. 45.
The acts of a ministerial officer, which are unauthorized by the association, or its superior officers, are not binding on it and may not invoke as evincing a waiver of its rights unless ratified with knowledge of the facts. Clair v. Supreme Coun. Royal, etc., 155 S.W. 892.
Under the by-laws of a mutual benefit society, the acceptance by the secretary of the local lodge of premiums after notice that the insured had engaged in a prohibited occupation, held not a waiver on the part of the supreme lodge not to raise an estoppel against the enforcement of the forfeiture. Jones v. M. B. A., 155 N.W. 923.
Certainly there was in this case no intention to waive anything by a secretary, who did not even have knowledge of it, until the policy was ipso facto void. "The acceptance of premiums after suspension has automatically been effected, does not waive the suspension, in the absence of evidence showing intention to waive. Wall v. Brotherhood Painters, 165 Ill. 159.
Receipt of assessments from a member after ipso facto forfeiture of his membership for non-payment of his assessments held are not a waiver of forfeiture. Wheatley Admrs. v. Knights of Col., 170 S.W. 937. We call attention also to case of Crites v. Modern Woodmen of the World, reported in 117 N.W. 776, Wherein this question is discussed as to hazardous occupations, and there held that the order was not estopped from pleading its exemption from liability due to the fact that he engaged in a prohibited occupation. This case was given a rehearing and again confirmed in 121 N.W. 591.
Acceptance of dues from a member by a fraternal society without knowledge that he had forfeited his insurance by engaging in an extra-hazardous occupation does not constitute a waiver of the forfeiture. This case was reheard, and reaffirmed in 126 Appeal Div. 934, by the supreme court of New York.
The supreme court of Oklahoma in the case of Modern Woodmen v. Weekley, 139 P. 1138, held: "Where after issuance of a benefit certificate, the insured entered a prohibited occupation, the company was not estopped from denying liability even though it had accepted the dues for a permissible occupation.
The supreme court of Nebraska, in the case of Royal...
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