Sovereign Camp Woodmen of World v. Barnes

• Decision Date: 10 July 1922
• Docket Number: 114
• Citation: 243 S.W. 55,154 Ark. 486
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. BARNES
• Court: Arkansas Supreme Court

243 S.W. 55

154 Ark. 486

SOVEREIGN CAMP WOODMEN OF THE WORLD v. BARNES

No. 114

Supreme Court of Arkansas

July 10, 1922

Appeal from Ashley Circuit Court; Turner Butler, Judge; reversed.

Judgment reversed.

T E. Helm, for appellant.

Each and every beneficiary certificate is issued upon the conditions stated in and subject to the constitution and laws then in force or thereafter enacted. 104 Ark. 538; 183 U.S 308; 180 P. 2; 188 S.W. 941; 153 Wis. 223. The failure of William E. Barnes to comply with the requirements of reinstatement prevented a recovery. 133 Ark. 411; 136 Ark 355; 85 S. R. 827; 180 P. 2; 144 P. 223; 125 N.W. 49; 170 S.W. 937; 172 S.W. 687. The court erred in refusing to sustain defendant's objections to the introduction of evidence as to reinstatement. 99 Ark. 547; 55 Ark. 567; 71 Ark. 197; 11 C. J. 176. The court erred in ruling that the testimony of John K. Barnes and Ned P. Atkins was competent. 104 Ark. 538; 133 Ark. 411. The court erred in holding that the change in the constitution was not binding upon the assured because the defendant had not complied with section 6097 of C. & M. Digest. See also secs. 6086, 6087 and 6090, C. & M. Digest; 104 Ark. 538; 133 Ark. 411; 151 N.W. 692; 87 Mo. 458. The certificate was not in effect and his beneficiary is not entitled to recover. 114 N.Y.S. 480; 89 A. 301; 63 So. 571; 80 So. 545; 47 A. 257; 188 Ill.App. 131; 32 Ind.App. 273; 69 N.E. 707.

G. P. George and Compere & Compere, for appellee.

The verdict of the jury was supported by the evidence. 233 S.W. 708. If the assured was not a member, and ceased to be such before January 3d, when the dues were sent in, then defendant has waived such defense by holding the dues. 233 S.W. 280. Such question was a question of fact for the jury to determine. 233 S.W. 280. No question was raised at the time he received the money as to the time it had been paid. 99 Ark. 204. It was a question for the jury to determine whether defendant had held it an unreasonable length of time before returning it. 233 S.W. 412. Any agreement, declaration or course of action on the part of the insurance company, which leads the insured to believe that by conforming thereto, a forfeiture of his policy will not be incurred, constitutes a waiver. 36 U. S. Law Ed. 496. The rules were not properly proved. 87 Ark. 115; C. & M. Dig., sec. 6087. The law does not favor forfeitures. 67 Ark. 506; 230 S.W. 576.

OPINION

MCCULLOCH, C. J.

Appellant is a fraternal insurance society operating in Arkansas, and formerly had a subordinate branch, or camp, at Parkdale, in Ashley County. W. E. Barnes became a member of the camp at Parkdale in the year 1910, and kept up his membership by the payment of dues and assessments until September or October, 1920. His policy, or benefit certificate, in the sum of $ 2,000 was made payable to his wife, Maggie Barnes.

The camp at Parkdale was ordered disbanded for certain reasons, and the members who had preserved their membership were transferred to the camp at Omaha, Nebraska, and W. E. Barnes was one of the members so transferred. It is undisputed that he was suspended for nonpayment of assessments, either in September or October, 1920. There is a dispute in the testimony as to which of the assessments he failed to pay, whether his suspension occurred on account of the nonpayment of the assessment in September or in October. At any rate, it is undisputed that he was suspended not later than the first part of October, 1920, for nonpayment of assessments.

On January 3, 1921, a son of W. E. Barnes mailed to the clerk of the camp at Omaha, of which W. E. Barnes was a member, a postoffice money order for the sum of $ 16.20, which was the amount of three assessments, accompanied by a letter stating the fact that the money order was inclosed for the sum named, "covering three months' dues." The clerk made no reply to this communication until January 27, 1921, when he mailed the un-cashed money order back to the address of Barnes, calling attention to the fact that another assessment was due before reinstatement could be effected, and that under the constitution and laws of the order a certificate of good health must be furnished.

Barnes died on January 19, 1921, and upon refusal of appellant to pay the amount of the benefits, this action was instituted to recover the sum named in the certificate. There was a verdict in favor of appellee, from which an appeal has been prosecuted.

The suspension of Barnes as a member of the fraternity being admitted, the only questions involved in the controversy are, whether or not he was duly reinstated, and whether the noncompliance with certain conditions of the by-laws with reference to the method of reinstatement were waived.

The application and policy state, in substance, that the by-laws of the order constitute part of the contract. The jury might have found from the conflicting testimony that at the time the remittance was made to the secretary of the camp at Omaha on January 3, 1921, the suspension for nonpayment of assessments had occurred within three months before that date, therefore, the following by-law is the one which is applicable to the case:

"Sec. 66 (a) Should a suspended member pay all arrearages and dues to the clerk of his camp within ten days from the date of his suspension, and if in good health at the time and continue in good health for thirty days thereafter, and not addicted to the excessive use of intoxicants or narcotics, he shall be reinstated and his beneficiary certificate again become valid.

"(b) After the expiration of ten days, and within three months from date of suspension of a suspended member, to reinstate he must pay to the clerk of his camp all arrearages and dues and deliver to him a written statement and warranty, signed by himself and witnessed, that he is in good health at the time, and continue in good health for thirty days thereafter, and not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights hereto if such written statement and warranty be untrue.

"(c) Any attempted reinstatement shall not be effective for that purpose unless the member be in fact in good health at the time, and continue in good health for thirty days thereafter, and if any of the representations or statements made by said applicant are untrue. then said payments shall not cause his reinstatement nor operate as a waiver of the above conditions."

The by-laws put in evidence were properly certified by appellant's supreme secretary, and it is shown that the by-law as it now appears was adopted at a regular session of appellant in the year 1919, but the court refused to permit it to be introduced in evidence for the reason that it was not shown that it had been filed with the insurance department in accordance with the provisions of the following statute:

"Every society transacting business under this act shall file with the insurance department a duly certified copy of all amendments of or additions to its constitution and laws within ninety days after the enactment of the same. Printed copies of the constitution and laws as amended, changed or added to, certified by the secretary or corresponding officer of the society, shall be prima facie evidence of the legal adoption thereof." Crawford & Moses' Digest, sec. 6097.

The record is silent on the subject whether or not the amendment to the by-laws had been filed with the insurance department,...