August 6, 1926. The opinion of the Court was delivered by On March 30, 1922, the defendant, a fraternal beneficiary association, incorporated under the laws of the State of Nebraska, issued to William H. Fuller, through a local camp known as Hickory Camp, No. 104, a certificate of insurance on his life in the sum of $1,000, his wife, Mrs. Mamie Fuller, being named beneficiary. The insured, Fuller, died *Page 240 on June 25, 1922. The association refused to pay the amount of the insurance, and this suit resulted.
It is alleged in the complaint, among other things, that at the time of the death of the said William H. Fuller he had complied with all the requirements of the contract of insurance and had paid to the defendant, its officers and agents, the monthly premiums called for in the said contract, and that when the insured died satisfactory proof of his death was immediately furnished the defendant, its officers, and agents. The defendant pleaded a general denial, and pleaded further that it had issued to the said William H. Fuller an insurance certificate for $1,000 payable only in case he died in good standing in the said society, according to the terms and conditions of the beneficiary certificate; that the insured had failed to pay his monthly assessments for the month of May, 1922, and as a result was suspended and his certificate of insurance rendered null and void; and, upon information and belief, that at the time the dues were paid, as was claimed to have been done for and on behalf of the insured, he was ill and died within a few hours thereafter.
The insurance certificate contained the following provisions:
"This certificate is issued and accepted subject to all the conditions set forth herein, and provisions of the constitution and laws in relation to membership, on the second and third pages hereof. The articles of incorporation and the constitution and laws of the society, and all amendments to each thereof, which may be made hereafter, the application for membership and medical examination, signed by the applicant, herein named as member, 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 Sovereign Clerk, shall be received in evidence as proof of the terms and conditions *Page 241 thereof. Should this certificate be forfeited for any cause, acceptance of any payment from or for the member, or other act by any camp officer or member of the society after said forfeiture, shall not operate as an estoppel or as a waiver of the terms of this contract."
The answer further pleaded certain provisions of the constitution and by-laws of the association, as follows:
"Sec. 63 (a). Every member of this society shall pay to the clerk of his camp one annual assessment, or one monthly installment of assessment, as required by these laws, or by the provisions of his certificate, which shall be credited to and be known as the Sovereign Camp Fund, and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay any additional Sovereign Camp Fund and camp dues, or either, which may be legally called.
(b) If he fails to make any such payments on or before the last day of the month he shall stand suspended, and during such suspension his beneficiary certificate shall be void.
Sec. 65. No suspended member shall be reinstated whose health is at the time impaired, or become impaired within 30 days after any attempted reinstatement, or who has used intoxicants to such an extent as to become frequently intoxicated, or who has become addicted to the use of opiates, cocaine, chloral, or other narcotic or poison to such an extent as to impair his health, or who has made false representations in his application to become a member, or been guilty of any of the offenses mentioned in these laws.
Sec. 66 (a). Should a suspended member pay all arrearages and dues to the clerk of his camp within ten days from the date of his suspension, and if in good health at the time and continue in good health for thirty days thereafter, and not addicted to the excessive use of intoxicants or narcotics, he shall be reinstated and his beneficiary certificate again becomes valid. *Page 242
(b) After the expiration of ten days, and within three months from 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 at the time, and continue in good health for thirty days thereafter, as a condition precedent to reinstatement, and waiving all rights hereto if such written 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.
Sec. 109 (g). The clerk of the camp shall not, by acts, representations, waivers or by vote of his camp, have any power or authority not delegated to him or to the camp by the Constitution and laws of this society to bind the Sovereign Camp or his camp."
The case was tried before Judge Rice and a jury at the fall term of the Court of Common Pleas for Oconee County, 1923. At the close of the testimony the defendant moved for a directed verdict on substantially the same grounds set out in its exceptions on appeal, but the motion was refused. The jury returned a verdict in favor of the plaintiff, and the defendant now comes to this Court on appeal, on the ground that the trial Judge should have directed a verdict for the defendant, because:
"(1) That evidence shows that at the time of his death W.H. Fuller was not a member in good standing, by reason of the fact that he failed to pay his dues for the month of May, 1922, and his policy was thereby made void.
"(2) That at the time of the payment of money to D. V. Wright, clerk of the local Camp, on June 24, 1922, the undisputed testimony is that the said W.H. Fuller was then very sick, and died within a few hours after, and such attempted reinstatement was null and void and of no effect. *Page 243
"(3) That the payment of the amount intended to cover the dues in arrears could not and did not have that effect for the reason that W.H. Fuller failed to comply with the constitution and by-laws of the defendant society, and of the terms of his contract of insurance governing reinstatements, in that he failed to file with the clerk a written statement and certificate, signed by the said W.H. Fuller, that he was in good health, and warranting that he would remain so for thirty days, which was a condition precedent to reinstatement.
"(4) That there is absolutely no evidence of waiver, or estoppel, on the part of the Sovereign Camp, or any of its officers or agents, as the evidence shows beyond question that the Sovereign Camp repudiated the action of the clerk of the local camp and ordered him to return the money he had received, and this action by the Sovereign Camp shows its clear intention was not to sustain the action of the local clerk, and repudiated the attempt to reinstate him.
"(5) That under the laws of this state, and under the Constitution and laws of the society, the local clerk has no power to waive any of the said laws, and by the terms of the contract this attempt to reinstate this man and receive his void contract did not reinstate him.
"(6) That the said W.H. Fuller had been suspended on the books of the local camp and of the Sovereign Camp, and had never been reinstated as a member on either, but stood suspended at the time of his death, and his policy was void, and he could only be reinstated in the manner provided by said Sovereign Camp."
Section 4160 of the Code of Laws of 1922 (Section 2755, Code of Laws of 1912), is as follows:
"No subordinate body or any of its officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the association, and *Page 244 the same shall be binding upon the association, and each and every member thereof and their beneficiaries."
Section 4185 of the Code of Laws of 1922 (Section 2770 of Code of Laws of 1912), reads as follows:
"When any fraternal insurance or beneficiary society, order or association of this or any other state, province, or territory, now or hereafter operating within this State, and having lodges, councils, chapters, branches or subordinate or branch offices duly established and organized in this state, and when under the laws, rules or regulations of such said society, order or association, members of the same are required to pay or customarily and with the knowledge and consent of such said society, order or association, do pay premiums, dues, assessments, fines, or other payments to any other member or person for the purpose of transmitting or delivering the same to the general office or to a division, subordinate or branch office of such said society, order or association, then such said members or person by whatever name or title known and called, so collecting such premiums, dues, assessments, fines, and other payments, shall be deemed and considered the agents of such said fraternal insurance, or beneficiary society, order or association."
It appears from the testimony that William H. Fuller became a member of the defendant's local camp No. 104, located at Fair Play, in Oconee County, during the month of April, 1922, and that at the same time he took out with the defendant an insurance certificate upon his life in the sum of $1,000, making his wife, the plaintiff herein, the beneficiary. He did not pay his monthly dues for May, 1922, during that month, and, accordingly, was suspended under the constitution and by-laws of the order. On June 24, 1922, Fuller being ill and his illness being known to the clerk of the local camp, one Stansell, his brother-in-law, paid over to the clerk Fuller's dues for May and June, and these dues *Page 245 were accepted by the clerk, who issued a receipt therefor. No written statement and warranty was delivered to the clerk by Fuller as required by the constitution and by-laws. Fuller died the next morning. Thereafter on June 29, 1922, Wright, the local clerk, wrote the Sovereign Camp as follows:
"I am writing you for a little information. Sovereign W.H. Fuller was suspended on installment No. 5 for May. I did all that I could to keep him from being suspended. Now, on the 24th of June his brother-in-law came to me and said he wanted to pay Fuller's W.O.W. dues. I told him what the law required, and that he would not be reinstated under 30 days. He said Fuller was sick, but had never gone to bed. After talking about it some, I thought that I could get the statement in two or three days, and just unthoughtedly I taken the money for Nos. 5 and 6, May June. Now, to my surprise, they came to me Sunday, June 25, and said Fuller was dead — died that morning. I told them under the present law he was out, and he was not buried under the auspices of W.O.W. If I had had the least idea that he was in such a condition I would not have taken the money under no consideration. I had not seen him for some time myself. I was misled in the matter. Now, some of his immediate friends seems to think that he was reinstated — want to ignore the 30 days. They want your ruling on it as to whether he was reinstated or not. To satisfy them I promised to write you. So let me hear from you at your earliest convenience in regard to the matter. I regret for such things to come up. It is the first time that such a thing presented itself to me.
"P.S. — His friends look at it from the old law."
In reply to this letter the general attorney of the Sovereign Camp wrote to Wright, under date of July 14, 1922, as follows:
"Re: Wm. H. Fuller certificate: *Page 246
"The Sovereign Commander's office has referred to me your letter of the 29th ult., concerning the suspension of the above named. You certainly should have insisted upon strictly carrying out the provisions of the constitution, laws and by-laws relative to reinstatement, and you should not have accepted any money for his arrearages after he was suspended, without having him comply with the law. Even if a member is suspended for only one day, he is ineligible for reinstatement unless he is in good health, and after ten days' suspension he is required to furnish a written statement to that effect.
"Furthermore, the Constitution, laws and by-laws of the society provide that no attempted reinstatement shall be effective unless the suspended person is in fact in good health at the time. Therefore the effort which was made to reinstate him by paying you his arrearages while he was sick is not effective, and there is no valid claim against the society by reason of his subsequent death.
"You will immediately return all payments which may have been made to you on account of the deceased since his suspension, and you will not accept any more payments on his account under any circumstances."
The one question presented by this appeal is, Was there a waiver by the Sovereign Camp of the forfeiture of the certificate of insurance?
The trial Judge, in his charge to the jury, said without objection by either plaintiff or defendant:
"Now, gentlemen, the point in this case, as both attorneys have stated to you, is as to whether or not there was a waiver of certain conditions in this policy."
Proceeding in elucidation of this charge, he defined waiver as the "voluntary relinquishment of a known right," and narrowed the question of waiver in this case to the one question as to whether or not the Sovereign Camp, with knowledge that Fuller had not complied with all the requirements *Page 247 for reinstatement, retained the back dues which had been paid in on behalf of Fuller without tendering them back or offering to return them, thereby waiving the additional requirements for reinstatement. In this connection he said:
"But did the company, after they found out the condition in the first place, through the clerk — and we are coming to questions now which are disputed, and on which you will have to find there is a contrariety of evidence on that — did Mr. Wright, when he accepted the premium, acting for the company, know that Mr. Fuller was in bad health, that he was sick? Then, after they found out afterwards that he was dead, did they retain the money or premium which he paid as back dues? Did they tender it back to the party who paid it to him for Mr. Fuller? If they tendered it back, gentlemen then there wasn't any waiver. Now, this is proceeding upon the fact that they knew, and I believe there is no dispute that Mr. Wright knew that the man was dead. Now, did the company know at this time, when they held the money, that this man was dead? And you can take the correspondence there, and you can see as to whether or not they knew. And, as I told you, it was impossible for the man to comply with those conditions in order for him to be reinstated, because he died before the time that the law of the order said would have to elapse before he could be reinstated. There is no dispute on that. Now, did the Woodmen of the World, acting through the clerk, have knowledge of that, and keep the money If they did that, and made no offer to return it, gentlemen, then they will have to pay this insurance; that's all there is to it. * * * Now, it is for you gentlemen to say as to which one of those things occurred, and it is for you to say as to whether or not, if they did retain the money without offering to return it, without a tender of the money, as to whether or not they didn't waive the conditions in this policy, this furnishing of the health certificate, and so on. Because if they retained *Page 248 it without any offer, as I have tried to explain to you, to return the money, or attempt to, then they have got this policy to pay, because they are utterly estopped to say it is void; they have waived these conditions in the policy and the policy must hold good."
Under this statement of the issues and the law, the question of waiver by the local clerk in accepting the back dues and issuing the receipt therefor is eliminated from the case. Indeed, the trial Judge expressly refused a request to charge the jury that it was "a question of fact for the jury as to whether or not the clerk waived the requirement of this health certificate at the time the dues were paid and this receipt was given," and his refusal to make this charge is entirely in harmony with the theory of the case which he stated to the jury in his general charge, and which was accepted by both parties without objection.
The question of waiver therefore turns upon the question as to whether or not the Sovereign Camp tendered back or offered to return the back dues paid, on behalf of the insured, to the local clerk, who was its agent to collect dues from its members. The letter of the Sovereign Camp to the local clerk directed him to return the payments made on account of the deceased since his suspension, thus creating him their agent for that purpose, and his acts of omission and commission thereafter in relation to this matter became the acts of the Sovereign Camp. The testimony as to whether or not he made a tender of or an offer to return these back dues is in conflict, and therefore the trial Judge properly submitted the question to the jury. Our conclusion in this case is not out of harmony with any of the cases cited by counsel for the appellant in their argument.
The decision in the Currence case rested not upon any waiver by the clerk of the local camp at the time he received the back dues, but upon the view that the *Page 249 clerk of the Sovereign Camp, from a letter sent to him by the local clerk, knew or had notice, which, if pursued with due diligence, would have led to knowledge that the certificate of good health had not been delivered at the time of the payment of back dues, the testimony thus tending to show that there was waiver by the Sovereign Camp. Currence v.Sovereign Camp W.O.W., 95 S.C. 61; 78 S.E., 442. In the present case there was testimony tending to show that the Sovereign Camp was apprised of the fact that the local clerk had collected Fuller's back dues, but had not received the health certificate; that the Sovereign Camp created the local clerk its agent to return the back dues; and that he failed to tender back or offer to return them. This testimony tended to show waiver on the part of the Sovereign Camp.
While the Crumley case held that the local clerk's acts in reinstating or endeavoring to reinstate a suspended member were obligatory on the Sovereign Camp, in the first instance, with power on its part, within a reasonable time, to review the action of the local clerk, yet the Court assigned another reason why a verdict should not have been directed in favor of the defendants, to wit: That the Sovereign Camp was estopped by the conduct of the local clerk, its agent, in discharging certain duties incident or appertaining to his office. Crumley v. Sovereign Camp, W.O.W., 102 S.C. 386;86 S.E., 954. So in the present case the Sovereign Camp constituted the local clerk its agent for the purpose of returning the back dues that had been paid in, and is now estopped from denying that his acts are its own, and, if such acts amount to waiver, they become waiver on the part of the Sovereign Camp.
In the Vant case the plaintiff sought to overcome the defense on the ground that it had been waived by acceptance and retention of premiums from Vant after knowledge of the facts relied on as a defense. The Court held that a *Page 250 verdict should have been directed for the defendant, but differentiated this case from the Currence case by saying that there was no testimony that any knowledge or notice of the facts was imparted to the Grand Lodge, or any officer thereof, so as to bring the case within the principle decided in the Currence case. Vant v. Grand Lodge K. of P., 102 S.C. 413;86 S.E., 677. Again, in the Sternheimer case, where it was held that the custom of a local lodge of a mutual benefit order not to declare forfeiture upon delinquency did not constitute waiver on the part of the order, especially where the Constitution prohibited such waiver and was agreed to by the insured, the Court pointed out that there was no evidence tending to show that the Supreme Council or any of its officers had notice of the custom.Sternheimer v. O.U.C.T. A., 107 S.C. 291; 93 S.E., 8. In the present case it is undisputed that the Sovereign Camp had knowledge that the health certificate had not been filed, or notice which, if reasonably pursued, would have led to such knowledge.
In the Weathers case the Court went further than we go in this case, deciding that case practically upon the grounds of the agency of the local clerk for the Sovereign Camp in reinstating a suspended member, as in the Crumley case.Weathers v. Sovereign Camp, W.O.W., 119 S.C. 402;112 S.E., 44. The case at bar depends not at all upon the general agency of the local clerk for the Sovereign Camp, under the Constitution and by-laws of the Sovereign Camp and the statutes applicable thereto, but upon the specific agency created in him by the Sovereign Camp for the particular purpose of returning the back dues that had been paid in.
In the Belue case it was held that a benefit association by receiving dues from and reinstating a delinquent member then suffering from an injury which caused his death, but which was unknown to the officer receiving the money, did *Page 251 not waive a condition of the contract exempting it from liability on account of injury received by a member while suspended for delinquency. In that case the Supreme Council for some time was wholly ignorant of the fact that Belue had sustained an injury before the back dues were paid, but when the actual circumstances were disclosed the amount of the back dues paid in was tendered back and the tender kept good by deposit with the clerk of the Court, and the Court refused to sustain the contention of waiver. Belue v. U.C.T., 121 S.C. 179; 117 S.E., 591. In the case at bar the Sovereign Camp knew that the local clerk had accepted back dues without requiring the health certificate and that the member was dead.
In our brief review of these adjudicated cases in connection with the case at bar, we have not considered the findings of the Court in these cases with reference to the agency of the local clerk, under the constitution and by-laws of the supreme governing body, to waive the additional requirements for reinstatement, such as the health certificate, by receiving back dues without demanding the fulfillment of such other conditions, since, as already pointed out, this question is not involved in the present case. We do not share the apprehension of counsel for the appellant that to affirm the judgment in this case will result in great harm to fraternal insurance in this state. This decision involves no new point of law, but, as we have shown, is entirely in harmony with cases already adjudicated. If the testimony in this case had been conclusive that the Sovereign Camp tendered back or made an offer to return the back dues which had been paid to it on behalf of the insured, a directed verdict for the defendant would have been proper. We may say in passing that there are more satisfactory methods of making tender than through unwitnessed oral conversation.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed. *Page 252
MESSRS. JUSTICES WATTS and BLEASE concur.
MR. JUSTICE COTHRAN and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY dissent.
MR. CHIEF JUSTICE GARY did not participate.