Sovereign Camp Woodmen of World v. Newsom

• Citation: 219 S.W. 759,142 Ark. 132
• Decision Date: 09 February 1920
• Docket Number: 168
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. NEWSOM
• Court: Supreme Court of Arkansas

219 S.W. 759

142 Ark. 132

SOVEREIGN CAMP WOODMEN OF THE WORLD v. NEWSOM

No. 168

Supreme Court of Arkansas

February 9, 1920

Appeal from Chicot Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed. Motion for rehearing overruled.

T. E Helm, for appellant; Gardner K. Oliphint, on the brief.

1. The constitution and laws of the order formed part of the contract and must have been complied with before there was any liability. 1 Bacon on Ben. Soc., § 81; 80 Ark. 419; 104 Id. 538; 81 Id. 514; 136 Id 355. When the assured became a member he assented to all its by-laws and is conclusively presumed to have made himself familiar with them. 104 Ark. 538-544; 1 Bacon on Ben. Soc § 1199; 19 R. C. L., § 17, pp. 1198-9. He must take notice of the laws of the order. Ib. supra; 209 S.W. 379-380. A custom of the clerk of the local order could not bind defendant. The insured was bound by the by-laws. 71 Ark. 295; 208 S.W. 587; 52 Ark. 201-206. The provision in the laws as to "waivers" is sufficient to warrant a reversal and dismissal of their cause. The insured failed to pay the March assessment and his policy lapsed. The officers of subordinate lodges have no authority to waive the payment of premiums. 104 Ark. 544; 172 S.W. 687-8; 85 S.E. 827; 125 Ark. 449; 92 P. 971; 25 L. R. A. (N. S. ) 78; 104 Ark. 538.

2. There was no waiver of the ipso facto forfeiture by reason of the failure of the local clerk to draw for the premium, as he was insured's agent and not that of the sovereign camp. 22 Mo.App. 127; 137 Mass. 368; 24 F. 450; 31 Id. 62; 75 S.W. 531; 214 S.W. 583; 85 S.E. 827; 80 P. 375; 80 Id. 1110; 106 Id. 328-330; 89 N.W. 773. See also 89 N.W. 773; 119 Id. 694; 135 S.W. 201; 168 Id. 1026; 117 F. 369. Neither waiver nor estoppel can exist without knowledge of all concerned with the transaction. May on Ins., § 505; 18 Wall. 255.

Harry E. Cook, for appellee.

None of the rules or by-laws require any particular manner of making the payment of premiums or dues. For eleven years the payments had been made through the Bank of Portland by draft of the local clerk and appellant is bound by the acts of the local clerk. Forfeitures are not favored. 67 Ark. 506-511-12; 113 Ark. 174-181; 103 Id. 171; 130 Id. 12; 132 Id. 546; 62 Id. 43; 65 Id. 54; 89 Id. 111; 92 Id. 378; 94 Id. 227; 99 Id. 476.

The local clerk had exclusive and complete control and authority over the collection and remittance of dues and assessments and his acts are binding on appellant. Supra; 94 Ark. 578; 133 N.C. 179; 9 Howard 390; 46 A. 1005; 59 Neb. 451; 81 N.W. 312; 165 N.Y. 608. See also our own decisions, 51 Ark. 440; 49 Id. 320; 100 Id. 212; 99 Id. 204; 67 Id. 506; 111 Id. 435; 104 Id. 538; 129 Id. 450; 3 S.Ct. Reporter, p. 1. The law is with the appellee and the evidence sustains the judgment.

WOOD, J. MCCULLOCH, C. J., and SMITH, J., dissent.

OPINION

WOOD, J.

This action was instituted in Chicot Circuit Court by the appellee against the appellant to recover on a certificate of insurance issued by the appellant to the husband of the appellee, in which certificate the appellee was the beneficiary.

The appellant is a mutual benefit secret fraternal association. The appellee alleged in substance that the appellant was authorized to do a life insurance business among its members in the State of Arkansas; that in July, 1908, her husband, Asa J. Newsom, became a member of the appellant, and that it issued to him a certificate insuring his life in the sum of $ 1,000 to be paid to the appellee in case of his death; that on the 4th day of April, 1918, Newsom died, and that at the time of his death all dues and assessments due the appellee had been paid; that appellant had been duly notified of Newsom's death and refused upon demand to pay the appellee the amount of the sum due her under the certificate.

The appellant answered admitting the issuance of the certificate and that the appellee was the beneficiary named therein and admitting the death of Newsom. But the appellant denied that Newsom had complied with the constitution and by-laws of the appellant in that he failed to pay the dues of the Sovereign Camp for the month of March, 1918, and that on account of such failure under the by-laws Newsom became suspended and remained so at the time of his death, whereby his contract of insurance was rendered void.

The material facts upon which the issue thus joined was heard are undisputed, and they are as follows: On the 29th of June, 1908, Asa J. Newsom made written application for membership and participation in the beneficiary fund of the appellant. He was received as a member and on July 10, 1908, the appellant issued to him a certificate in the sum of $ 1,000 in which the appellee was named as the beneficiary.

The certificate among other things, recited that it was issued and accepted subject to all the laws, rules and regulations of the fraternity then in force or that might thereafter be enacted; that the certificate should be null and void if the insured did not comply with all such laws, rules, and regulations of the Sovereign Camp of the Woodmen of the World, and with the by-laws of the camp of which he was a member.

There were these further recitals: "This certificate is issued in consideration of the representations, agreements and warranties made by the person named herein in his application to become a member and in consideration of the payment made when introduced in prescribed form, also his agreement to pay all assessment and dues that may be levied during the time he shall remain a member of the order.

"If the admission fees, dues and Sovereign Camp fund assessments levied against the person named in this certificate are not paid to the clerk of his camp as required by the constitution and laws of the order, this certificate shall be null and void and continue so until payment is made in accordance therewith."

The application contained among other things the following recitals: "I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, and all the provisions of the constitution and laws of the order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.

"I agree that, if I fail to comply with the laws, rules and usages of the order now in force or hereafter adopted, my beneficiary certificate shall become void and all rights of any person or persons thereunder shall be forfeited."

"I agree to pay all assessments and dues for which I may become liable while a member of the order, as required by its constitution and laws."

The pertinent provisions of the constitution and laws of appellant are as follows:

"Section 3. The object of the society is to combine white male persons of sound bodily health, etc., into a secret, fraternal beneficiary and benevolent society; to create a fund from which, on the death of members who have complied with all the requirements, the beneficiaries of said members may be paid according to the agreements; that a monument shall be erected at the grave of such member who dies in good standing and according to the contract and agreement with the society."

"Section 56. In order to pay death losses, disability benefits, monument obligations, emergency fund and Sovereign Camp general fund dues, every applicant admitted to membership to the Sovereign Camp, Woodmen of the World, on or after September 1, 1901, and to whom a beneficiary certificate is issued, shall annually pay to the Sovereign Clerk, in advance, an assessment based on their ages at nearest birthday at a date of entry (except as otherwise provided in sections 42 and 43 of the constitution and laws) as specified in the following table of rates."

Then follows the table of rates showing that for the age of 40 the annual assessment on $ 1,000 is $ 15.84. Then follows the provision that members should they so elect may pay the same in 12 monthly installments to the clerk of their camp on or before the first day of each month based on a table of payments. Then follows the table showing that at the age of 40 on a certificate of $ 1,000 the monthly payment is $ 1.32.

"In the event the insured has not paid his annual assessment in advance, but has paid installments of his assessment and dues up to and including the month of his death, the Sovereign Camp shall deduct from the amount of his certificate the balance due for the installments to cover the entire annual assessment."

"Section 60. The following conditions shall be made a part of every beneficiary certificate, and shall be binding on both member and this society:

"First. This certificate is issued in consideration of the representations, warranties and agreements made by the person named herein in his application to become a member, and in consideration of the payment made when introduced in prescribed form; also his agreements to pay all assessments and dues that may be levied during the time he shall remain a member of this society.

"Second. If the admission fees, dues and Sovereign Camp fund assessments levied against the person named in this certificate are not paid to the clerk of his camp as required by the constitution and laws of this society, this certificate shall be null and void and continue so until payment is made in accordance herewith.

"Waivers. Section 69 (a). No officer, employee or agent of the Sovereign Camp or of any camp has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued or to change, vary or waive any of the provisions of this constitution or...