Watson v. Sovereign Camp, W.O.W.

• Decision Date: 30 June 1921
• Docket Number: 10673.
• Parties: WATSON v. SOVEREIGN CAMP, W. O. W.
• Court: South Carolina Supreme Court

108 S.E. 145

116 S.C. 360

WATSON v. SOVEREIGN CAMP, W. O. W.

No. 10673.

Supreme Court of South Carolina

June 30, 1921

Appeal from Common Pleas Circuit Court of Greenwood County; R. W Memminger, Judge.

Action by Mrs. Mackie Watson against the Sovereign Camp, Woodmen of the World. From a judgment for defendant on directed verdict plaintiff appeals. Reversed.

Cothran J., dissenting.

Grier Park & Nicholson, of Greenwood, for appellant.

Dial & Todd, of Laurens, for respondent.

FRASER, J.

Samuel C. Watson took out a policy of life insurance with the respondent. The policy was payable to the appellant, his wife. The insured was drafted as a soldier, was sent to France, and died there. The policy permitted the insured to join the army and go outside of the United States, but it required notice to the company, and the payment of an extra premium. After the deceased left, his wife went to the clerk of the local camp and talked to him about the payment of her husband's dues. Mrs. Watson was short of money, as the payments had not come from the government. Her purpose was to allow the policy to lapse by not paying the premiums. She was urged by the local clerk to keep up the payments. She consented to pay them, but had to borrow the money to do so. The defendant refused to pay the face of the policy, but tendered the sum of $28.80, which it claimed was due under the terms of the policy. The payment of the full amount was refused, because the extra premium for an enlisted man had not been paid. The plaintiff claimed that her husband was not an enlisted man, but was a drafted man, and that the company had waived the payment of the extra premium. The presiding judge ordered a verdict for the defendant. From the judgment entered upon that verdict, this appeal is taken.

1. The first point cannot be sustained. The deceased was an enlisted man, under the terms of the policy. See McQueen v. Sovereign Camp, W. O. W., 106 S.E. 32, filed herewith.

2. The second point must be sustained. There was evidence of waiver, and the case should have been sent to the jury, under the case of Crumley v. Sovereign Camp, W. O. W., 102 S.C. 386, 86 S.E. 954. It is true that the officers of the local camp cannot waive anything, but this clerk was also the agent of the Sovereign Camp, and his duty was to "remit all funds due and belonging to the Sovereign Camp to the Sovereign Clerk, as by law provided." It is also true that this extra war risk premium was to be paid to the Sovereign Clerk at the home office. The respondent says it was to be paid directly to the Sovereign Clerk at Omaha, Neb. The policy does not say it shall be paid directly. The other provision, that the local clerk shall remit all funds, is sufficient provision to cover the extra premium. It appears in the case that no notice of the extra premium was given to that officer, who was authorized to forward all funds. There is no intimation that there was any neglect by any individual agent of the company. There was no evidence or presumption that the beneficiary knew or had possession of the policy, and should have known of the required extra premium. Under these circumstances it was for the jury to say whether the company waived the payment of the extra premium or not.

The judgment is reversed.

GARY, C.J., and WATTS, J., concur.

COTHRAN J. (dissenting).

Action upon a beneficiary certificate issued by the defendant to Samuel C. Watson, September 24, 1917, payable, upon certain conditions, to his wife, the plaintiff, Mrs. Mackie Watson. The insured died in France while in the service of the United States army on October 13, 1918, having been drafted June 24, 1918, subsequently to the issuing of the certificate. The amount of the benefit was $500 in the event of death during the first year of membership, $750 if within the second year, and $1,000 if after the second year. The insured having died within the second year, the benefit, if accrued, would be $750, although the complaint is for $1,000.

The certificate contains the following conditions and provisions material to the present inquiry, in substance:

1. If the insured should die outside the limits of the United States while serving in the army or navy, as an officer or an enlisted man, the amount due should be such proportion of the benefit as the period he lived after becoming a member bears to his expectancy of life at the time of his initiation, which would be practically a nominal sum.

2. The insured was permitted to avoid this limited benefit, under the circumstances stated, and secure the full benefit provided for in the certificate by complying with these requirements: (a) The option must be executed within 30 days after entering the service. (b) He shall notify the Sovereign Clerk at the home office, Omaha, Neb., that he has entered the service. (c) He shall pay in advance to the Sovereign Clerk $37.50 per $1,000 of insurance per annum, in addition to the regular assessment, the installment payment of Sovereign Camp fund, for his age as provided in tables of rates in section 56 of the constitution and laws.

3. The insured, who complied with these requirements, was extended the further concession that in the event of his death within the limits of the United States, without having served outside, the total benefit should be paid, together with the war assessments which he may have paid.

These facts are conceded: (1) The insured entered the service of the army after he received his certificate. (2) The insured died in France, beyond the limits of the United States, while in the service. (3) The insured did not within 30 days after his enlistment notify the Sovereign Clerk, at the home office, Omaha, Neb., of that fact. (4) The insured did not pay to the Sovereign Clerk the war assessment provided for in his certificate.

It was also shown that from the date of his certificate, September 24, 1917, to the date of his enlistment, the insured duly paid the ordinary Sovereign Camp assessments, the local camp dues, and the war tax (not the war assessments) to the local clerk at Greenwood; that, after he went over seas, the beneficiary under the certificate, the plaintiff here, continued to make similar payments to the same officer, including the month of October, 1918, the month in which the insured died.

It was also shown that when payments were made to the local clerk he assured the beneficiary, who made the payments that "the full policy would be paid if she kept the dues paid." Section 55 of the rules requires the local clerk to collect the admission fees, the dues, and the Sovereign Camp fund assessments, and section 94 requires him to "remit all funds due and belonging to the Sovereign Camp to the Sovereign Clerk as by law provided." Both the clerk who was in office when the insured received his certificate and the clerk who was in office when the payments were made by the beneficiary, or by some one for her, testified that they knew nothing of the war assessment required; that they made no such collections from any member; that they were not requested by the Sovereign Camp to collect them, and received no literature referring to them.

At the close of all the testimony the defendant moved for a directed verdict for the plaintiff for the amount $28.80, admitted to be due under the condition numbered 1 above; this motion was made upon the grounds set out in the record, which should appear in the report of this case. The motion was granted, and from the judgment entered upon the verdict so directed, the plaintiff has appealed.

The opinion of Mr. Justice FRASER proposes to reverse the direction of a verdict, practically in favor of the defendant, upon the ground that there is sufficient evidence of a waiver by the insurer of the vital conditions in the certificate upon which they rely, by reason of the fact that the local clerk collected the monthly dues and assessments without notifying the insured or the beneficiary of the war assessments required; that the local clerk was authorized to receive and forward all funds due to the Sovereign Camp, which included the war assessments, and that his conduct in not calling the attention of the insured or the beneficiary to the war assessments, was evidence of a waiver by the Sovereign Camp of the necessity of such payments.

I do not concur at all in this view, and am of opinion that the verdict was rightly directed. An analysis of the limiting condition (which reduces the benefit to a very small proportion of its face value) shows that it affects only one class of certificate holders, those who enter and die abroad in the service; and their policies are affected only when these two contingencies concur; until they do concur, the policies are perfectly sound; a certificate holder, so long as he is not so unfortunate as to meet both, suffers no diminution of the benefit.

If Watson, without going abroad, (1) had remained in the service here, or (2) died in the service here, or (3) been discharged from the service, or (4) had returned from abroad and remained in the service here, or (5) died in the service here, or (6) been discharged from the service, his policy would have been perfectly good, from the date of the certificate, continuously against these six contingencies, so long as the dues and assessments ordinarily required were paid by or for him. The seventh contingency, that one which happened, he made no provision against. He had a perfect right to take his chances against it, and save the $37.50 if he so desired. How could the defendant know that he had not determined to take this chance until he had done what he contracted to do in the event that they, and not he, were to assume the chance? The policy required that if the defendant was to assume that...