Sovereign Camp Woodmen of World v. Richardson

• Decision Date: 24 December 1921
• Docket Number: 68
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. RICHARDSON
• Court: Arkansas Supreme Court

236 S.W. 278

151 Ark. 231

SOVEREIGN CAMP WOODMEN OF THE WORLD v. RICHARDSON

No. 68

Supreme Court of Arkansas

December 24, 1921

Appeal from Logan Circuit Court, Southern District; James H Cochran, Judge; affirmed.

Judgment affirmed.

T E. Helm and Evans & Evans, for appellant.

Appellant did not comply with the terms of this contract, by notifying the sovereign clerk and by the payment of an additional premium while serving in the army. This had the effect to merely suspend the operation of the contract, and did not render it void. 138 Ark. 442. However, the failure to comply with the conditions of his contract is a bar to any claim thereunder during this period. The policy provided against the waiver of any of the conditions of the policy by any officer, agent, etc., and such provisions have been uniformly upheld. 58 So. 100; L. R. A. 1915-E 152; 4 L. R. A. (N. S.) 421; 183 U.S. 308; 180 P. 2; 40 S.W. 553, etc. The power to make by-laws for fixing the duties of members, etc., is expressly recognized by our statute, Acts 1917, act 462. On becoming a member of the order, Richardson agreed to be bound by such laws. Even conceding that Newberry made the statement ascribed to him, it was not such a positive statement that a prudent man could rely absolutely upon it. The contract of insurance is the measure of the rights of one and the obligations of the other party (71 Ark. 295) and relief must be granted, if at all, according to its terms (52 Ark. 201). Not against public policy to make exemptions such as in this case. 138 Ark. 442.

The war clause has been consistently upheld by the various courts. 106 S.E. 185; 181 N.W. 819; 230 S.W. 540; 106 S.E. 32; 107 S.E. 177; 89 Sou. 58.

Kincannon & Kincannon, for appellee.

Appellant is estopped by the action of its agent Newberry to claim a forfeiture. It was in reliance upon such statement that deceased joined the order. 142 Ark. 132; 127 Ark. 133. There being a conflict in the testimony upon the question of waiver, it was for the jury to settle the matter. 109 Ark 35. A verdict will not be disturbed where there is evidence legally sufficient to support it. 113 Ark. 471; 131 Ark. 362. The same is true of findings by the court. 89 Ark. 321; 93 Ark. 548; 111 Ark. 38; 113 Ark. 400.

WOOD, J. MCCULLOCH, C. J., dissenting. SMITH, J., concurs.

OPINION

WOOD, J.

The appellant is a mutual benefit society doing business in this State. Farrar Newberry was deputy manager of appellant in this State on March 16, 1918. His duties were organizing new camps, reviving old camps, and soliciting new members. On the day mentioned he was at Booneville, Arkansas, for the purpose of initiating a class of new members, and on that day a class was initiated into the order at his solicitation and under his direction, of which James W. Richardson was a member. Newberry was not an officer of the Sovereign Camp which has its domicile at Omaha, Nebraska. On April 3, 1918, the appellant issued to James W. Richardson a benefit certificate in which his wife, Winnie May Richardson, the appellee, was the beneficiary, insuring the life of Richardson for the sum of $ 1,000. The constitution and by-laws of the order are made a part of the contract of insurance, and, among others, the following provision was a part of the contract of insurance:

"In the event the holder of this certificate shall die while serving in any branch of the United States army or navy, either as an officer or enlisted man, outside of the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality; provided that, should the holder of this certificate so desire, he may within thirty days after entering the service in any branch of the United States army or navy as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America, and pay in advance to the sovereign clerk, for the society, the sum of $ 37.50 per one thousand dollars insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign Camp of the Woodmen of the World; and upon so doing at the death of the member, or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries."

The contract also contained a receipt signed by Richardson acknowledging that he had read the benefit certificate, and also a provision that Richardson would pay all the assessments and dues at such time and in such manner as were required by the constitution and laws of the order, and, in default thereof, his contract was rendered null and void.

Richardson enlisted in the United States army May 27, 1918, and went to France where he was killed in battle November 4, 1918. He did not notify the sovereign clerk that he had enlisted in the army and did not pay the additional premium required by the contract to keep his insurance alive while he was engaged in the military service beyond the bounds of the United States. The appellee and her father paid his monthly dues regularly until the death of Richardson. These dues were paid to the clerk of the local camp regularly as they became due. Neither the local camp clerk or the consul commander of the local camp informed the appellee or the father of Richardson at the time of the payment of the monthly assessment that any additional sum was necessary in order to keep the policy alive. At the time Richardson was initiated into the order, Newberry, in response to inquiries, told the members of the class that the provision of the contract requiring the payment of an additional premium of $ 37.50 for the increased risk of military service had not been enforced, and he did not think it would be necessary to enforce it; that there was nothing to that; that it would not bother the members then being initiated.

The appellee instituted this action against the appellant on the benefit certificate to recover the sum of $ 1,000. The appellant denied liability except for the sum of $ 13.50, the amount shown and conceded to be due under the policy if force were given to the war risk clause. Substantially the above facts were developed at the trial. The court, among others, instructed the jury as follows: "If you find from a preponderance of the evidence that witness Newberry stated to T. M. Riley and Riley stated to James W. Richardson that there would be no extra dues or assessments charged for entering the army, and that statement was made to induce Richardson to join the lodge and take out insurance in defendant's company, and said statement did induce the said James W. Richardson to join the lodge and take out insurance, then the company would be estopped from setting up a failure of Richardson to pay additional dues or assessments as a defense to this action, and if you so find, your verdict should be for the plaintiff for the sum of $ 962.50. If you do not so find from a preponderance of the evidence, you should find for the defendant."

The appellant duly excepted to the ruling of the court in giving the above instruction and offered prayers for instructions to the effect that the undisputed evidence showed that the "war clause" of the contract was in force, and that the jury should return a verdict in favor of the appellant. The trial resulted in a judgment in favor of the appellee in the sum of $ 962.50, from which is this appeal.

This issue as to whether or not the "war clause" of the policy had been waived at the time of the death of Richardson is settled by the recent decision of this court in Sovereign Camp W. O. W. v. Peaugh, 150 Ark. 176, 234 S.W. 161. The facts here with reference to the failure to notify the sovereign clerk that Richardson had entered the military service of the United States and had failed to pay in advance the additional premium of $ 37.50 for the war risk are precisely similar in essential particulars to the facts of the above case. Therefore, if there were nothing more in this case than the simple issue of waiver, the cause would have to be reversed under the ruling in the above case.

But the testimony in the present case was sufficient to justify the court in sending to the jury the issue as to whether or not appellant was estopped by the conduct of its agent, Newberry from setting up the failure of Richardson to pay the additional premium called for by the war clause, in defense of this case. In the recent case of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, 219 S.W. 759, in the opinion on rehearing at page 157, in discussing the difference between the terms "waiver" and "estoppel," we quoted from the opinion of Judge CHILTON, speaking for the...