Sovereign Camp, W. O. W. v. Williamson

• Decision Date: 18 November 1935
• Docket Number: 31916
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. WILLIAMSON

164 So. 47

174 Miss. 404

SOVEREIGN CAMP, W. O. W., v. WILLIAMSON

No. 31916

Supreme Court of Mississippi

November 18, 1935

Division A

Suggestion Of Error Overruled February 3, 1936.

APPEAL from the circuit court of Newton county HON. D. M. ANDERSON Judge.

Action by Woodie S. Williamson against the Sovereign Camp, Woodmen of the World. From a judgment for plaintiff, defendant appeals. Reversed, and judgment entered for defendant.

Reversed, and judgment here for appellant.

Rainey T. Wells, of Omaha, Neb., and Shamon & Schauber, of Laurel, for appellant.

When a member who has been suspended for nonpayment of dues attempts to pay again, the payment for purpose of reinstatement constitutes a warranty of good health. In other words, Mr. Williamson warranted that he was in good health when he made this payment to Mr. Fall on or about January 30, 1932. The facts show this warranty was false.

Bixler v. Modern Woodmen of America, 38 L.R.A. (N.S.) 571; Pickens v. Security Benefit Assn., 40 A.L.R. 654; Mixon v. Sovereign Camp, W. O. W., 125 So. 413; Berry v. Lamar Life Ins. Co., 142 So. 445; Crease v. Liberty Industrial Life Ins. Co., 151 So. 89; Embert v. Sovereign Camp, W. O. W., 2 La. App. 140; Brown v. Peoples Industrial Life Ins. Co., 16 La. App. 10, 132 So. 241; Bush v. Liberty Industrial Life Ins. Co., 15 La. App. 269, 130 So. 839.

We do not believe that the facts in the case at bar, which are, that Mr. Yates simply called the attention of Mr. Williamson to his rights under the constitution and by-laws could be construed to constitute a waiver and forfeiture.

We do not think that there could be any inference that the Sovereign Camp, W. O. W., either by an expressed or implied intention, waived the forfeiture of the policy.

Wilson v. Sovereign Camp, W. O. W., 154 So. 28.

We do not see where anyone could claim that there has been anything done in this case to mislead Mr. Williamson. The letter written by Mr. Yates specifically called his attention to the paragraphs in the constitution and by-laws which require that he be in good health to reinstate and the letter from Mr. Fraser simply asked him if he had paid his assessments. Mr. Williamson had certain rights under the constitution and by-laws and this was the only thing that Mr. Yates and Mr. Fraser attempted to call to his attention.

O. B. Triplett, Jr., of Forest, for appellee.

The appellant waived the forfeiture occurring January 1, 1932. A provision for forfeiture, while valid, is looked upon with disfavor in law; and slight circumstances, indicating an intention to waive a forfeiture, are sufficient to support a finding of waiver.

Brotherhood of Railroad Trainmen v. Bridges, 144 So. 554, 164 Miss. 356; Clive v. Sovereign Camp, W. O. W., 111 Mo.App. 601, 86 S.W. 501; Fraternal Aid Union v. Whitehead, 87 So. 453, 125 Miss. 153; Sovereign Camp, W. O. W., v. Rhyne, 158 So. 472, 171 Miss. 627; Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619.

The courts hold with practical unanimity that a forfeiture for nonpayment of premium does not render the policy void but only voidable at the insurer's option.

Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619; Vance on Insurance (2 Ed.), page 284.

The substance of the doctrine of "waiver" in insurance law is that if the insurer, with knowledge of facts which would bar existing primary liability, recognizes such primary liability by treating the policy as in force, it will not thereafter be allowed to plead such facts to avoid its primary liability.

Protective Life Ins. Co. v. Cole, 161 So. 818; Sovereign Camp, W. O. W., v. Muse, 163 So. 682; Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619; American Ins. Co. v. Millican, 153 So. 454, 228 Ala. 357.

A waiver of a forfeiture for nonpayment of premium need not be based on a new consideration nor on estoppel.

Stonewall Life Ins. Co. v. Cooke, 144 So. 217, 165 Miss. 619; Mayes v. Great American Ins. Co., 256 P. 1003; Vance on Insurance (2 Ed.), page 473.

An insurer is charged with knowledge of what its own records show and its officers know.

Sovereign Camp, W. O. W., v. Muse, 163 So. 682; 45 C. J., page 138, secs. 113 and 114; Morgan v. Independent Order, 90 Miss. 864, 44 So. 791.

Appellant wrongfully repudiated appellee's certificate.

Vance on Insurance (2 Ed.), pages 325, 326; A. L. I. Restatement, Contracts, sec. 318; Odd Fellows v. Smith, 161 So. 115; Sovereign Camp, W. O. W., v. Penn, 161 So. 681.

Appellee's action was maintainable within a reasonable time or for so long as his delay worked no injustice on appellant.

Odd Fellows v. Smith, 161 So. 115; O'Neill v. Supreme Council, A. L. of H., 70 N.J.L. 410, 57 A. 463, 1 Ann. Cas. 432; Cooley's Briefs on Insurance, page 469.

Argued orally by A. B. Schauber, for appellant, and O. B. Triplett, Jr., for appellee.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit court of Newton county against the Sovereign Camp, Woodmen of the World, in an action based upon the alleged wrongful repudiation by it of an insurance contract covering the life of the appellee. It is admitted that, under the provisions of the constitution, laws and by-laws of the appellant, which were expressly made a part of the appellee's beneficiary certificate, the appellee was suspended as a member of said association, and all his rights under said certificate of insurance were forfeited on account of his failure to pay the December, 1931, assessment thereon. But it is contended that this suspension and forfeiture were waived by virtue of two certain letters hereinafter quoted, written by an officer of the appellant association at a time when the association had full knowledge of the fact that the appellee was in bad health and was unable to comply with the provisions of its constitution and by-laws for reinstatement of suspended members.

On June 1, 1929, upon appellee's warranty that he was then in good health, a new insurance certificate providing additional disability benefits was issued to him in the place of his old certificate. On May 8, 1931, appellee filed an application for total and permanent disability benefits under the new certificate, which showed that he was not in good health at the time the new certificate was issued, and after certain negotiations and litigation between the parties, this new certificate was canceled on the ground of breach of warranty of good health at the time it was issued, and the old certificate was reinstated and assessments readjusted in accordance with the provisions of the old certificate. Thereafter, the appellee paid his assessments regularly until December, 1931, but failed to pay the December assessment, and on January 1, 1932, his membership in the association became automatically suspended and his contractual rights under his insurance certificate were forfeited.

On January 16, 1932, an officer of the local camp of the association at Decatur, Mississippi, wrote to the president of the association at Omaha, Nebraska, seeking to enlist his interest in securing hospitalization for the appellee, stating in his letter that the appellee was in a very bad physical condition due to asthma in an advanced stage, and that he probably had tuberculosis. The president of the association replied to this letter, inclosed an application blank, and directed that the applicant fill out this application and return it with full details of a physical examination to be made by his attending physician. The record does not disclose that this application was ever returned to the association.

On January 27, 1932, the secretary of the association wrote to the appellee as follows:

"Mr. W. S. Williamson, Hickory, Miss.

"Esteemed Sovereign: The report No. 12 received from the Financial Secretary of your camp shows that you failed to pay installment No. 12 for the month of December, 1931. I think therefore, I should call your attention to the fact that your certificate is valuable and to abandon it now would be a considerable loss to you. Our Association maintains full reserves on all of its outstanding certificates, and in addition has sufficient funds with which to protect the reserves from impairment in the event of an unusual death rate due to catastrophe or epidemic. The Association has in its immediate possession actual tangible assets amounting to more than One Hundred Million Dollars. Accordingly, there can be no question as to our financial responsibility. It may be possible that your failure to pay has been the result of some misunderstanding on your part. If such is the case, please write me and tell me just what you want to know and I will be very glad to furnish information requested. Of course, it is possible that your failure to pay has been the result of an oversight, and if such is the case you should immediately pay the amount due to the Financial Secretary of your Camp, or in the event that you have already done so, please disregard this letter. For your information, I am inclosing herewith the provisions of Sections 65-68 of the Constitution Laws and By-laws of the Association with reference to the payment of delinquent installments. You will find also enclosed self-addressed envelope for your reply. No postage is required, simply seal and place in Post Office.

"Fraternally yours,

"J. T. Yates, Secretary."

With this letter there was inclosed a printed copy of sections 65-68 of the constitution, laws and by-laws of the association. Sections 65 and 66 read as follows:

Section 65. "Any member who becomes suspended because of the non-payment of any installment of assessment, if in good health, may within three calendar months from the date of his suspension again become a member of the Association by the payment of the current...