Sovereign Camp, W. O. W. v. Ballard

97 So. 895, 19 Ala. App. 411, 1923 Ala. App. LEXIS 239

• Court: Alabama Court of Appeals
• Decided: May 8, 1923
• Docket: 3 Div. 420.
• Status: Published

Opinions

Defendant is a fraternal order, issuing to its members certificates or policies insuring their lives against death, etc., in accordance with the terms of the certificates, which embrace the constitution and by-laws of the organization. Plaintiff is the beneficiary named in the certificate issued to her son, who was a member of the order, at Plant City, in the state of Florida, and to him, through the local camp at Plant City, Fla., was issued the certificate sued on in this case. One of the vital conditions named in the certificate was:

"This certificate is issued and accepted subject to all conditions on the back hereof. The articles of incorporation, and the constitution and laws of the Sovereign Camp of the Woodmen of the World and all amendments to each thereof which may be hereafter made, the application for membership and the medical examination of the member herein named as approved by the Sovereign physician of this society and this certificate shall constitute the agreement between this society and the member, and copies of the same certified by the secretary of the society or corresponding officer shall be received in evidence of the terms and conditions thereof, and any changes, additions or amendments to the articles of incorporation, Constitution or laws duly made or enacted subsequent to the issuance of this benefit certificate shall bind the member named herein and his beneficiaries and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership, also subject to the by-laws of the camp of which he is a member,"

This certificate was signed by the officials of the order and accepted in writing by the member, in which he declared as follows:

"I have read the above certificate No. 44573 of the Sovereign Camp of the Woodmen of the World, and the conditions thereon, and hereby agree to and accept the same as a member of camp No. 74, state of Florida, this the 10th day of July, 1917, and warrant that I am in good health at this time, and that all the requirements of section 58 of the Constitution and Laws of the society have been complied with."

Another condition was that he would pay —

"all assessments and dues that are required of him during the time he shall remain a member of this society and to make such payments at such time, in such manner and in such amount as is required by the constitution and laws of this society now in force or which may hereafter be adopted."

By Section 110 of defendant's constitution the member was required to pay certain assessments by the first day of each month succeeding the issues of the certificate, and, failing to make such payment, the member stands suspended, and during such suspension the certificate is void. Section 116 of the constitution provides for reinstatement as follows:

"Section 116. * * * (b) After the expiration of ten days and within three months from the 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 and not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights hereto if such writer 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 if any of the representations or statements made by said applicant are untrue, then said payments shall not cause his reinstatement not [nor] operate as a waiver of the above conditions."

The member complied with all these requirements to and including August 1, 1918. On September 1 and October 1, 1918, he failed to make the required payments. On October 14th, while the member was ill and in a hospital in Montgomery, Ala., his wife wrote a letter to the clerk of the local camp of defendant at Plant City, Fla., stating the reason why the assessments had not been paid, and notifying the clerk of the member's then ill health and his confinement in the hospital, whereupon the defendant's local clerk, on October 16th, who was charged with the duty of collecting the assessment, and through whom alone payment was provided, issued to the member receipts for the two assessments, and informing him that he was reinstated and in good standing. On October 17th the member died of the illness of which he was confined in the hospital. The member did not comply with that condition of his certificate providing that, in addition to the payment of arrearages, he shall deliver to him (the local clerk) a written statement and warranty signed by himself and witnessed that he is in good health, and not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement. Nor could be comply with section 119 of the order, which provides:

"No suspended member shall be reinstated whose health is at the time impaired,"

it being admitted at this time the member was in the hospital sick of a disease from which he died the next day.

The foregoing facts were sufficiently pleaded in count 2 of the complaint, stating the cause of action, and defendant's pleas 1 to 9, both inclusive. Plaintiff replied to defendant's pleas as follows:

"For further replication plaintiff says that, after the failure of the said Lloyd Ballard to pay said monthly installment of assessments for the month of September, 1918, on or by the 1st day of October thereafter, said installment, together with the installment for October, was paid for said Ballard by W.A. Clark, clerk of the camp of which the said Ballard was a member, said payment being made on, to wit, October 16, 1918. At the time said payment was made the said Clark had information that Ballard was ill and in an infirmary, but said Ballard on said date was reinstated as a member of the camp and of the defendant order without being required to furnish a certificate as to good health; that thereafter, on, to wit, November 5, 1918, said installments of assessments were forwarded to defendant's Sovereign Clerk, and statement was also furnished to him by the clerk of the local camp showing that Ballard had been reinstated on October 16, 1918; that in the matters herein above set out Clark was the authorized agent of the defendant. Prior to November 5, 1918, the defendant order had been duly notified of the death of the said Ballard by the consul commander, banker and clerk of the local camp of which Ballard was a member. This notice was dated October 24, 1918, and was received by the defendant's Sovereign Clerk, John P. Yates, on, to wit, October 29, 1918, and in it was a statement showing that Ballard had died October 17, 1918; that the cause of his death was pneumonia; that it occurred at Camp Sheridan, in Montgomery, Ala.; that Ballard had been suspended on the 1st day of October, 1918, and reinstated on the 16th day of October, 1918; that, after receiving the information herein-above set out, the defendant, on or about November 12, 1918, received and accepted the installment assessments of the said Ballard for the months of September and October, 1918, and still retains the same. Wherefore plaintiff avers that the defendant ratified the reinstatement of the said Ballard and waived a compliance with the requirements relied on as a defense in said special pleas, and plaintiff is not precluded from recovering by reason of the defense set up in said pleas.

"For further replication to said special pleas, and separately to each of them, plaintiff adopts all of replication 6 down to and including the words, `defendant, on or about November 12, 1918, received and accepted the installment assessments of the said Ballard for the months of September and October, 1918,' and adding immediately thereafter the following `That defendant also furnished her with the necessary blanks for the purpose of showing the death of said Ballard, who was her son, and of establishing her claim as beneficiary under the certificate sued on, which said proofs were made out and sent to the defendant, plaintiff being put to time and trouble in doing so, and that the defendant has retained said September and October installments of assessments. Therefore plaintiff avers that defendant waived its right to insist on the defense set up in said pleas, and plaintiff is not precluded thereby from recovering.' "

Demurrers were filed to these pleas, demurrers were overruled, and rejoinders were then filed, to which demurrers were sustained except as to rejoinder 5. Issue was joined on this rejoinder along with the general issue, which was interposed at each step of the pleading. The foregoing sufficiently states the facts in the case made by the pleading, except in so far as it may become necessary to allude to the evidence in a further consideration of the various propositions presented in this appeal.

Briefs for appellant were filed on the submission, which, while not strictly complying with Supreme Court rule 10 (175 Ala. xviii, 61 South. vii), will be considered in so far as legal propositions relating to errors assigned are sufficiently argued or presented, and all other assignments of error not so presented in the original brief are waived. The supplemental or reply brief of appellant, since forwarded to this court, will not be considered, it appearing that a copy of same was not furnished appellee's counsel, as is required by Rule 13 (175 Ala. xviii, 61 South. vii).

The statement in a brief for appellant. "We insist on each separate and several assignment of error and do not waive any assignment of error," is not such compliance with Supreme Court rule 10 as to require this court to search through the assignments of error thus alluded to for error on which to base a reversal. East Pratt Coal Co. v. Jones, 16 Ala. App. 130,75 So. 772.

The first point of moment arises in a consideration of the question as to whether the member to whom the certificate issued was in good standing at the time of his death. It is admitted that the member was in default of the payments due September 1st and October 1st, and that, failing to pay the dues so delinquent on or before October 10th, ipso facto, under the terms of the policy, he became suspended, with only the right of reinstatement. U. O. of G. C. v. Hooser, 160 Ala. 334,49 So. 354. If he was not reinstated then no recovery can be had on this certificate. On October 14th, after suspension of membership had occurred, the following letter was written:

"W.A. Clark, Clerk, W. O. W., Plant City, Fla. — Dear Sir: Your letter of Oct. 7th, just rec'd by me today. I was drafted the 15th of July. Am here at Camp Sheridan near Montgomery, Ala. I was sent to the hospital Friday night. Have been unable to keep my camp dues paid since August as I only get $8.50 per month, as fifteen (15) dollars is taken out for my wife's allotment and $6.50 for my army life insurance, but as soon as I am able to leave the Base Hospital will give this my earliest attention. Yours very truly, Lloyd Ballard, Co. D, 46th Infantry, Camp Sheridan, Montgomery, Ala."

Giving to the evidence a construction most favorable to the plaintiff, upon receipt of this letter the camp clerk, who was charged with the duty of collecting dues, without demanding a certificate of health, out of his own funds, paid the amount due, sending a receipt therefor to the member on October 16, 1918, which receipt contained the following condition:

"If any of the sums herein receipted for are paid for the purpose of reinstating the Sovereign so paying, the same are received upon the express conditions and agreement that they shall be held in trust for him until the requirements of the laws of the order in relation to reinstatement have been complied with; that the payment and the giving of this receipt shall not be a waiver of such requirements, and that he has no claim upon the order until he has fully complied therewith.

"W.A. Clark, Clerk."

These receipts were never received by the member, he having died on October 17th, before their arrival.

The crux of this case is the agency of Clark, the local clerk, and how far, as such agent, he can bind the defendant by his act of issuing the receipts to the insured; for it must be admitted that, in so far as he was authorized, he bound defendant to reinstatement. While there is a line of authorities holding that a stranger, who is under no obligation to pay the debt of another cannot, without the debtor's request or ratification, pay such debt and charge the debtor therewith, our courts, together with other respectable authority, hold that the creditor must receive payment tendered by a third person, and, where such payment is made and the creditor accepts, such payment operates as an extinguishment of the debt so far as the creditor is concerned. McLane v. Miller, 10 Ala. 856; Brewer v. Branch Bank, 24 Ala. 439; Leavitt v. Morrow,6 Ohio St. 71, 67 Am. Dec. 334; Crumlish's Adm'r v. Central Imp. Co., 38 W. Va. 390, 18 S.E. 456, 23 L.R.A. 120, 45 Am. St. Rep. 872; Gray v. Herman, 75 Wis. 453, 44 N.W. 248, 6 L.R.A. 691. So that when Clark, the local clerk, issued the receipts to the member, the dues were paid, subject to the condition named in the receipts, unless such conditions were waived. If, therefore, Clark made the payment for the member in extinguishment of the amount due, it was made, so far as defendant is concerned, with the condition as expressed in the receipt, that the amount should be held in trust for the member, without waiver on the part of the defendant, until the laws of the order in relation to reinstatement had been complied with. We must hold, therefore, that the issuance of the receipt for the money by Clark, the local clerk, without the certificate of health, was not a waiver on the part of defendant of this requirement in the constitution and by-laws of defendant. The case of U. O. of G. C. v. Hooser, supra, 160 Ala., in passing upon this point, at page 347 (49 South at page 359), proceeds upon the assumption "that the officer or agent who acted for the defendant was clothed with authority, either actual or apparent, to bind the defendant," while in the instant case both by the constitution, by laws, and the policy, of which the member had notice, and as such the member was bound, specifically stated that such local clerk had no such actual or apparent authority. U. O. of G. C. v. Hooser,160 Ala. 334, headnote 6, 49 So. 355. There is an expression in the opinion by Denson, J., in the Hooser Case, supra, 160 Ala. 347,49 So. 359, that:

"Forfeitures may be waived by subordinate lodges or their ministerial officers who are the agents of the Supreme Commandery, acting within the scope of their authority." (Italics ours.)

This is the declaration of a correct rule where such subordinate agencies exercise, in some measure, at least, a general agency, as to that part of the condition alleged to be waived. But, where the agency is limited, and the limitation is known to the party claiming the waiver, a different rule would apply. The agent would not then be acting within the scope of his authority if he acted beyond his limitations.

In this case Clark, the clerk of the local camp, when he voluntarily paid to himself, as clerk, the arrearages of Ballard, the member, acted in a dual capacity. As agent for defendant he knew his limitations, and as agent for Ballard he could only pay the money subject to those limitations. The law will not permit an agent, acting either for himself or another, to act adversely to his principal. In law, as in morals, it may be stated as a principle, to preserve good faith and fair dealing, a man cannot serve two masters, for either he will hate the one and love the other or else he will hold to the one and despise the other. Luke, xvi, 13. The law cannot allow the payment of the arrearages of Ballard by Clark, the local clerk, to himself as clerk without the certificate of health provided by the policy and constitution and by-laws of the order in such sort as to constitute a waiver of the forfeiture of the benefits provided in the policy. To permit this would open the doors wide for fraud and unfaithfulness.

"In all cases, when without the assent of the principal the agent has assumed to act in a double capacity the principal may avoid the transaction at his election." 21 R. C. L. p. 827, note 19.

The action of the court in overruling demurrers to plaintiff's special replications 6 and 7 and in sustaining demurrers to all of defendant's special rejoinders, except rejoinder No. 5, are not insisted on as error in appellant's brief in such manner as to authorize this court to consider these rulings, the omission in appellant's brief being a waiver as to these assignments. This leaves the issues presented by special replications 6 and 7 and special rejoinder 5. This brings us to a consideration, first, of replications 6 and 7. Whether these replications may or may not be subject to some ground of demurrer we do not pass on, that point having been, as we have seen, waived in brief. These replications allege a waiver on the part of defendant, through and by its supreme officers, who, as such officers, and representing the defendant, and with knowledge of the facts, received and retained the money paid for the member, and thereby ratified the act of Clark, the local clerk, in accepting the dues without the certificate of health, although the report of the clerk and the receipt of the money did not reach defendant's responsible officers after the death of the member.

However unauthorized and irregular was or may have been the act of Clark in making the payment of arrearages for Ballard, the defendant could, by its acts and conduct, ratify such unauthorized act. If, with a full knowledge of all the facts, including the fact of a failure on the part of Clark to demand or to receive the certificate of health required by the defendant, knowing at the time that Ballard was sick in a hospital, and was not in physical condition to comply with the condition, the defendant accepted the payment of the money and retained the same for an unreasonable time, or if, after coming into possession of such knowledge, defendant still continued to retain the money or retained it for an unreasonable time, such act would constitute a waiver of the condition. Hardy v. W. O. W., 17 Ala. App. 53, 81 So. 690.

The weight of authority is to the effect that a forfeited contract cannot be reinstated after the member's death. Drum v. Benton, 13 App. D.C. 245; Carlson v. Supreme Council, Am. Leg. of H., 115 Cal. 466, 47 P. 375, 35 L.R.A. 643; Clark v. Met. Life, 107 Mich. 160, 65 N.W. 1; Smith v. Sov. Camp, W. O. W., 179 Mo. 119, 77 S.W. 862. This rule, however, has no application in the instant case where payment of arrearages and application for reinstatement depend upon ratification of acts done before death. Sov. Camp, W. O. W., v. Grandon, 64 Neb. 39,89 N.W. 448; Jackson v. N.W. Mu. Relief Ass'n, 78 Wis. 463,47 N.W. 733. If the act of unauthorized reinstatement by Clark was ratified by the defendant, such ratification and reinstatement relates back and dates from the date of payment (Mu. Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A. 1918D, 860), and the right to reinstatement depends on the facts as they existed when the payment of arrearages was made.

The replications allege, among other things:

"November 5, 1918, said installments, of assessments were forwarded to defendant's Sovereign Clerk, and a statement was also furnished to him by the local camp showing that Ballard had been reinstated on October 16, 1918."

This allegation might have been subject to a demurrer on the ground that, as to reinstatement, the allegation was a conclusion, but, in the absence of demurrer, we must conclude that the allegation was tantamount to saying that the Sovereign Clerk had notice that Ballard had furnished to the local clerk a certificate of health as required by the terms of his policy and had on October 16th paid the arrearages of dues, for, according to the contract of insurance and the law of the order, in this manner only could a reinstatement be binding, unless the reinstatement, being irregular, had with full knowledge of all the facts been ratified by the general officer of the defendant having authority to do so. There is no evidence in this record to sustain an allegation that defendant's sovereign officers had notice of a reinstatement of Ballard, for in fact no such reinstatement ever took place, and, if the sovereign officer had been put in possession of the exact facts, as disclosed by this record, such facts would have shown an ipso facto suspension, and the issuance of receipts for the September 1st and October 1st dues, the amount to be held in trust for Ballard, until he should further comply with his contract for reinstatement by furnishing a certificate as to his good health and freedom from certain habits. The receipt issued by Clark, the local clerk, at the time of the payment of the money, is evidence of the terms upon which the money was paid and received and is being held, and there is no evidence in this record prior to the filing of claim for the death loss that a contrary insistence would be made.

Assuming, as is held in many cases, that the beneficiary succeeds to all the rights of the insured under the policy, such beneficiary would also succeed to the burdens. In this case, under the contract, Ballard would only be entitled to reinstatement upon complying with the condition relative to his health; failing in this he could only demand the amount of money paid, and which under the terms of payment was and is being held in trust for him.

Under the facts in this case we are bound to hold that the only rights to which plaintiff succeeded under the contract is the right to demand the money held in trust by the defendant. Fraser v. Ætna L. Ins. Co., 114 Wis. 510, 90 N.W. 476. As we view this case it becomes necessary to pass upon no other questions.

The affirmative charge should have been given for defendant as requested. For this error the judgment is reversed, and the cause is remanded.

Reversed and remanded.

BRICKEN, P.J., not sitting.

On Rehearing.