Yarbrough v. Sovereign Camp, W. O. W.

• Decision Date: 11 October 1923
• Docket Number: 4 Div. 79.
• Citation: 97 So. 654,210 Ala. 188
• Parties: YARBROUGH v. SOVEREIGN CAMP, W. O. W.
• Court: Alabama Supreme Court

97 So. 654

210 Ala. 188

YARBROUGH v. SOVEREIGN CAMP, W. O. W.

4 Div. 79.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by Dovie Yarbrough against the Sovereign Camp of the Woodmen of the World. Judgment for defendant, and plaintiff appeals. (Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Farmer Merril & Farmer, of Dothan, for appellant.

H. K Martin, of Dothan, for appellee.

GARDNER J.

Appellee is a fraternal beneficiary society, and issues to its members benefit certificates of insurance. The husband of appellant became a member of the order, taking out a benefit certificate payable to her, and upon which she brings this suit. This appeal brings for review the rulings of the trial court upon the pleadings. It is not deemed necessary to specifically treat these pleadings and the rulings thereon but a general statement of the facts therein disclosed will suffice.

The certificate was issued on the life of H. W. Yarbrough on February 7, 1920. Insured defaulted in the payment of the assessment due on January 1, 1921, and his suspension from the order followed on February 1st thereafter, the benefit certificate becoming void. On March 14, 1921, an effort was made to reinstate said Yarbrough by paying assessments for January, February, and March, 1921, to the clerk of the local camp; insured being sick on that date, and dying six days later. There was no written statement or certificate of health, but the local clerk accepted the payment for purposes of reinstatement.

It is not controverted that under the previous decisions of this court, construing Acts 1911, p. 700, the action of the local clerk was without any binding effect upon the defendant order. Sov. Camp v. Gay, 207 Ala. 610, 93 So. 559. However, on April 14, 1921, the clerk of the local camp forwarded these past-due assessments to the Sovereign Clerk and the money was "received and accepted and retained" for the purpose of reinstating said Yarbrough. It is therefore insisted that, as these funds were retained by the sovereign officer, the alter ego of the defendant order, with a knowledge of the facts as to the sickness and death of the insured, this constituted a waiver as to any condition of reinstatement. One of the conditions as to reinstatement was the good health of the insured. The rules and regulations governing such question appear in the pleading, and have been reproduced in previous decisions of this court, and need not be here repeated. Sov. Camp v. Gay, supra; Sov. Camp v. Adams, 204 Ala. 667, 86 So. 737; Sov. Camp v. Tucker, 206 Ala. 562, 90 So. 801.

Upon the question of waiver by its officers as to the rules of an order of this character, so as to bind the order, there appears to be a diversity of opinion. See authorities cited in Sov. Camp v. Allen, 206 Ala. 41, 89 So. 58. But this court, in Sov. Camp v. Eastis, 96 So. 866, held there may be such binding waiver by the supreme officer, the alter ego of the order, and had indicated to like effect in the Gay Case, above cited.

We are of the opinion, however, that no such binding waiver is shown by the averments of the pleadings in this case. The waiver is predicated merely upon the retention by the Sovereign Clerk of these past-due assessments after knowledge of the facts and reliance is had upon Sec. Mut. Life Ins. Co. v. Riley, 157 Ala. 553, 47 So. 735, but that case is not here...