On Motion for Rehearing.
It is believed that this case is different from, and not in conflict with, the eases of Maccabees v. Johnson (Tex. Civ. App.) 273 S. W. 612, and Sovereign Camp Woodmen of the World v. Hines (Tex. Civ. App.) 273 S. W. 927. In the Johnson Case as reported the question rested solely upon accepting dues paid by the insured after the prescribed time. The secretary of the local lodge “knew that Johnson (the insured) had been hurt” (and which injury resulted in his death) at the time he received and accepted the delinquent assessments from the insured. There was no *787(by-law requirement that the insured remain “in good health for 30 days” after the delinquent dues are paid. As held, the local secretary was the agent of the society, and there was waiver of prompt payment of assessments, precluding the society from setting up forfeiture of policy. In the Hines Case the local clerk received the delinquent assessments “and marked the receipt ‘reinstated’ and also entered the name / of the deceased on his books as reinstated at the time, and that it was the intention of the local clerk to reinstate the insured.” It also appeared “that deceased was sick at the time he tendered his'dues on March 8, which was known to the local clerk at the time, and was also known to the local camp physician, Dr. L. Corley.” As held, there was express waiver of the good health requirement, precluding the Sovereign Camp from asserting forfeiture. As stated:
“It was not, however, shown that there was any fraud or concealment on the part of the insured by which the clerk of the local camp was induced to accept said payment and to attempt to reinstate him. The clerk seems to have acted in good faith, relying on the fact that the Sovereign Camp had acquiesced in the custom theretofore in vogue with reference to reinstating members of said local camp without requiring evidence of good health at the time.”
In the instant case, however, there was no “reinstatement” by the local clerk, and there was no “custom” of reinstating members without requirement of good health, and “the local clerk had no knowledge whatever of the condition of the health of the said Bailey.” Mr. Bailey never informed the local clerk of his sickness. Further, there is no proof that in any instance the good health requirement was waived as to delinquent members. Therefore, under the facts as before decided, there is no waiver of the good health requirement, nor estoppel precluding the setting up of forfeiture of the policy.
The motion is denied.