Sovereign Camp W. O. W. v. Cameron

Appellee's attorneys have filed herein a motion for rehearing, in which it is very strenuously contended that the opinion rendered in this case is in conflict with the opinion in the Bailey Case, 116 Tex. 160,286 S.W. 456, and 288 S.W. 115, 47 A.L.R. 876. The writer does not think any such conflict exists. Under the contract of insurance in the Bailey Case, the insured had no absolute right to pay the past-due installments, without at the same time furnishing the written warranty of good health, and the local clerk did not have to accept such past-due installments without being furnished such written warranty. Under the contract sued upon in this case, it is specifically provided "any attempt by a suspended person to again become a member, shall not be effective for that purpose, unless such person be in fact in good health at the time and continue in good health for thirty days thereafter, and the payment of any unpaid installments of assessments shall be a warranty that such person is at the time in good health, and that if the warranty is not true, the certificate shall be null and void."

It is held in the Bailey Case, 116 Tex. 169, 288 S.W. 115,47 A.L.R. 876, that, after the certificate became forfeited, the holder was no longer a member, and "he was no longer bound by the conditions of his certificate, except in so far as his right to enforce reinstatement was concerned." Under this holding Cameron, even though he had been suspended and his certificate of insurance had become forfeited, was bound by the conditions and provisions of his contract in reference to his right to be reinstated as a member and to reinstate his insurance. In addition to the provisions of the contract quoted above, there are further provisions which are quoted in full in the original opinion rendered in this cause, which further provide that the *Page 288 payment of unpaid installments after the ten-day period, and within the three months period, shall be held to warrant that the insured is in good health at the time and will remain in good health for thirty days after such attempt to again become a member, and that such assessments, when so paid, shall be received and retained without waiving any of the provisions of the contract until the Sovereign Clerk shall have received actual, and not constructive or imputed, knowledge that the person was not in good health when he attempted to again become a member.

As stated in the original opinion, under these provisions of the contract, the payment of the past-due installments was in itself an express warranty that at the time Cameron was in good health. At the time these installments were paid, whether paid by Cameron himself or by some one else for him, he was charged with notice of, and bound by the above-mentioned provisions of the contract in reference to reinstatement, and the acceptance of the installments by the clerk of the local camp was not a waiver of the previous forfeiture. Under these provisions of the contract, it was not incumbent upon the local clerk to ascertain whether or not Cameron was in good health at the time, and even though the clerk might have known of Cameron's illness, still the only authority the local clerk had was to receive and remit the money, and his receipt thereof did not constitute a waiver of the previous forfeiture.

The motion for rehearing is therefore overruled.

Overruled.