June 6, 1913. The opinion of the Court was delivered by In order to understand the facts and the issues raised by the pleadings, it will be necessary to set out a copy of the answer in the report of the case.
The first question that will be considered is, whether there was any testimony tending to show waiver on the part of the defendant.
It was the duty of the clerk of the local camp to make collections for the camp.
Section 93 of the constitution and by-laws of the Woodmen of the World provides, that "it shall be the duty of the clerk to have charge of the records, attend to the correspondence, accounts and literature of the camp, and all miscellaneous matters pertaining to its welfare." (It was admitted that this has reference to the clerk of the local camp).
Subdivision c: "He shall remit all funds due and belonging to the sovereign camp to the sovereign clerk, as by law provided."
It was the duty of the local clerk to make his report to the clerk of the sovereign camp, and to state whether the insured had delivered to him a written statement, that he was at that time in good health.
The clerk of the local camp wrote the following letter to the sovereign camp: *Page 67
"Clover, S.C. No. 2. Camp No. 247, S.C. Located at Oak Ridge.
"Mr. Jno. T. Yates,
"Dear Sir: Find P.O. order for $3.00, for reinstatement of Sov. W.M. Joy, Cer. No. 18523. He was suspended on assessment No. 247 and now wishes to be reinstated, and made payment to me this morning, and I made my report yesterday, so I told him I would mail same to you, and if you accepted it, it would be O.K., and if you didn't he could take the matter up with you. Hoping to hear from you in regard to this, at your earliest convenience, I beg to remain, Yours very fraternally, ROBERT SAYE RIDDLE, This July 4th, '11. Clerk."
This letter shows that the clerk of the sovereign camp knew that the certificate of good health had not been delivered; or, at least gave to him such notice, which if pursued with due diligence, would have led to knowledge of the fact that the certificate had not been delivered, which is equivalent to notice.
It is true that under the provisions of the statute, the local clerk did not have the power to waive compliance with the requirements of the constitution and by-laws; but the testimony tends to show that there was waiver by thesovereign camp.
The other question is whether the insured was guilty of such fraud as rendered the policy null and void.
Even if it should be conceded that the question of fraud was made an issue by the pleadings, it was, however, properly submitted to the jury, and their finding is not subject to review by this Court.
Judgment affirmed.
MR. JUSTICE WOODS concurs in the result. *Page 68