Sovereign Camp, W. O. W. v. Hynde

• Decision Date: 03 March 1924
• Docket Number: 23965
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. HYNDE

99 So. 259

134 Miss. 705

SOVEREIGN CAMP, W. O. W., v. HYNDE

No. 23965

Supreme Court of Mississippi

March 3, 1924

Division A

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.

Action by Mrs. Luly Hynde against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Neville & Stone, for appellant.

Under the uncontradicted testimony in this record the local camp clerk had no authority to bind the defendant by any act or promise to waive the payment of monthly assessments against the certificates sued on. He was the agent of defendant, but with limited powers, delegated to him by the constitution and laws of the sovereign camp. The general principles of law governing those who deal with agents apply here. We invoke two doctrines that our court is committed to. First "The authority of an agent to bind his principal depends upon the powers conferred upon him by his principal." Second, "One deals with an agent at his own peril." Gulf Coast Traction Company v. Faulk, 80 So. 340; Sumrall v. Litselman Bros., 58 So. 594.

Section 109 (G) of the constitution and laws of defendant limits Watt's powers to those delegated in said constitution and laws. Here is a specific limitation of authority on the agent to bind his principal on this identical question, that of waiving a contractual obligation. The insured is presumed to have known the limitation of the clerk's authority to bind the principal, and hence dealt with open eyes. Odd Fellows, etc., v. Celea Smith, 58 So. 100.

Section 5192, Hemingway's Code, authorizes fraternal benefit societies to provide in their laws that subordinate officers shall have no power to waive the provisions of its constitution and laws, and when so enacted it shall be binding. There is no proof in this record that the sovereign camp had any knowledge whatever of the acts and promises of the local clerk, as testified to by plaintiff herein; and no proof that it acquiesced in or approved of any conduct that even contemplated a waiver of the payment of assessments. But there is positive proof to the contrary.

This record discloses no evidence of a waiver of the payment of assessments known to, or acquiesced in by the defendant, nor is there proof in the record of any custom established of waiving forfeitures for non-payment of assessments, but the contrary of both propositions is established by the evidence in this case. We earnestly contend that the failure to pay assessments as they become due and payable terminated all rights under the benefit certificate here sued on. Valentine v. Hood Camp P. J. W. O. W., 8 A. L. R. 380; Haylack v. Sov. Camp, W. O. W., 8 A. L. R. 478; Sov. Camp, W. O. W. v. Gay, 93 So. 559; Sov. Camp, W. O. W. v. Adams, 86 So. 737; Sov. Camp, W. O. W. v. Ballard, 97 So. 895; Independent Order v. Moncref, 50 So. 558 (Miss.); Kennedy v. Grand Fraternity, 92 P. 791; Sov. Camp. v. Anderson, 202 S.W. 698 (Ark.); Sov. Camp v. Newsom, 219 S.W. 759, (Ark.); Grand Lodge v. Taylor, 131 P. 783, (Colo.); Supreme Council v. Grove, 96 N.E. 159 (Ind.); Howton v. Sovereign Camp, 172 S.W. 687.

We respectfully submit that case should be reversed and judgment rendered in favor of the defendant.

M. W. Reily and J. E. Parker, for appellee.

The appellant bases its defense upon the lack of authority in the clerk of the local camp to bind the appellant by contract or estoppel, and certain portions of the bylaws and constitution of the order are relied upon to establish this defense.

Our answer to this defense is three-fold. (1) That the clerk of the local camp did in fact have the authority to bind the appellant in the manner relied upon in this case; (2) That the apparent authority with which the local clerk was clothed by the appellant authorized him to bind the appellant within the scope of such apparent authority; (3) That the appellant is estopped to deny the binding force of the agreement made in this case.

In the collecting of dues, the camp clerk becomes the company by both appearance and effect. The only one authorized to act; the only one in position to act; the only visible representative of the insurer. If the letter of the rule has trimmed him to the point of ineffectiveness, they have provided no one else to be more effective.

The camp clerk is not represented as being wholly without power in regard to keeping policies or certificates alive, except by accepting the dues when offered before default. But under some circumstances it is contemplated that such certificate may be kept in proper form and fully effective by the acts of the camp clerk, without the member having to pay his dues. Rule 109.

See Whiteside v. Supreme Conclave I. O. of H., 82 Federal 275, where the financial collector of the insurance company had frequently granted the insured an extension of time for the payment of his dues; Johnson v. Grand Lodge, A. O. U. W., 86 P. 494, where it was held that the assurance by a subordinate lodge to a sick member that it would pay his dues for a specified time, and relied upon by such member, waived payment during that time, and prevented a forfeiture from being declared for non-payment, without notice to him. See, also, McCorkle v. Texas Benev. Assn., 8 S.W. 516; Jones v. Knights of Honor, 127 A. S. R. 277; Sovereign Camp, W. O. W., v. Dismukes, 38 So. 354. The language used by our court in the case of Fraternal Aid Union v. Whitehead, 87 So. 453, is accurate in defining the law, and applicable to the facts in this case.

As was there pointed out, there must be some one with authority to act. The facts in this case show that under the terms of the constitution no one has been so authorized. Section 2615, Code of 1906, supplies this deficiency, and it was this kind of a situation that the section was intended to remedy. The company has provided no one to meet its policy-holders to deal with them on the basis of liability or authority; the statute says there is one with authority whose acts will make operative all the duties and liabilities imposed by law, and that person is the agent who receives, collects, or transmits the premiums paid for this insurance.

Here the company, through its representative, was trusted. The conditions causing this agreement to be made continued to grow worse, and as they grew worse, the value of the policy became more fixed and its maturity more certain, and every feature which warranted the making of this agreement in the first instance with greater reason denied the right to break it.

In the very soul and purpose of the doctrine of estoppel are the rights of the appellee founded. She trusted her rights into the hands of the appellant, and it cannot be the law that a broken trust can be recognized as the basis of a right. The judgment entered should not be disturbed.

OPINION

HOLDEN, J.

This is an appeal from a judgment against appellant for two thousand, one hundred and forty dollars in favor of Mrs. Luly Hynde, beneficiary in a certificate of insurance issued upon the life of her deceased husband by the appellant, Sovereign Camp, Woodmen of the World. The benefit certificate was of the usual form, which provided that, if the insured died while in good standing in the order, that is, had paid all dues and assessments required of him by the constitution and by-laws of the order then in existence or that might be enacted in the future, the beneficiary, the appellee here, would be entitled to receive the amount of the certificate. The application for the benefit insurance is made a part of the contract of insurance along with the constitution and by-laws of the order, and is binding upon both the insurer and insured. The by-laws of the order require that all assessments and dues must be paid on or before the last day of each month; otherwise the beneficiary shall stand suspended, and the benefit certificate becomes void upon such suspension.

The by-laws also provide that no officer or...