(concurring) .
Unless the words “Paid in full to the date of policy,” appearing on the receipt book, introduced in evidence, showing monthly payments made by McCrory, both in law and in fact, rule this case, then the appellee (plaintiff below) can not recover on their action.
The record in no way discloses who placed the above-quoted words on the receipt book nor when they were placed there, unless we assume they were placed there after the certificate had been in force twenty-five years. The words are not signed or *574initialed by anyone; neither do they bear date. They could have been placed there by the Camp Clerk of his own volition; they could have been placed there by the Camp Clerk at the request of the certificate holder, or they could have been placed there by some other person for the purpose of ready personal information.
By deposition it is shown that the first notice received by appellant of the existence of these words was when the beneficiary made proof of the death of McCrory which time was about seventeen years after the expiration of the twenty-five year period succeeding the date of the issuance of the certificate.
Now if the quoted words are to be binding on the Society which issued the certificate, it must first be shown who placed the words on the certificate, and further that such person was the agent of the Society, and that the Society had power to authorize such notation. All these elements are absent. The law of agency pertaining to transactions of this nature is elementary and requires no citation of authority.
Further, if the Society had authority to issue the certificate with the endorsement, “Payments to cease after 25 years”, and had no authority to revoke this provision, then the endorsement of the words “Paid in full to date of policy,” on the receipt book held by McCróry, was an idle act; it could neither add to or detract from the certificate. The certificate would then speak for itself, it being shown and admitted by all parties that assessments had been timely paid upon it for a full period of twenty-five years.
I have given close study to the opinion of the Special Chief Justice rendered in this case. In my opinion same fully covers the law of the case. We must at least give great weight to the case of Wirtz v. Sovereign Camp, W.O.W., 114 Tex. 471, 268 S.W. 438, 440, if indeed we should not be bound thereby. This was a Texas Supreme Court case decided by three very able special judges. Judge Kittrell, the Special Chief Justice, wrote an able and exhaustive opinion. In the course of his opinion he lays down this proposition of law: “It may be stated, in view of the authorities, that the provision of the contract that the insured should be released from any obligation to pay any assessment after the lapse of 20 years, was ultra vires the association.”
In support of this proposition he cites cases decided by the Supreme Court of Nebraska, the domiciliary home of the Society in that case, and in this case.
Judge Kittrell cites the case of Westerman v. Supreme Lodge K. P., 196 Mo. 670, 94 S.W. 470, 5 L.R.A.,N.S., 1114, wherein it is said that the ,law applying to paid-up policies is not applicable to fraternal and benevolent associations. As a further reason for applying a rule differing from the law as applied to “old line” insurance companies and as conferring the power upon Fraternal Societies to disregard or revoke “cease to pay” provisions in certificates of insurance issued by fraternal societies, he uses this apt language: “No benevolent association is an insurance company in the 'ordinary acceptation of that term. The relation of certificate holders — as distinguished from ‘policy holders’— is essentially mutual and reciprocal. Each certificate holder is an insurer of the other and of all others who are members, and if it were permitted to exempt a certain part of the membership from the payment of dues, after they have been members a certain length of time, or after they have reached a certain age, that relationship of mutuality and reciprocity, which is the essence of the association, would be destroyed, and the burden of paying assessments sufficient to meet losses would be shifted from the whole to a part of the membership, with the inevitable result that the whole theory of organization of such associations would be violated, and the whole fabric — none too strong at best — which is built upon it, would fall into insolvency and ruin.”
In considering the case at bar, I find the case of Stark et ux v. Sovereign Camp, W.O.W., 189 Ky. 719, 225 S.W. 1063, 1065, by the Court of Appeals of Kentucky to be very much in point.
That case was a suit in equity. It appears that Stark held a certificate issued by the Sovereign Camp Woodmen of the World for the face amount of $1,000. As in the case at bar, the certificate contained “a cease payment clause”; the exact endorsement being “amount $1,000.00, rate 1.30, payment to cease after 20 years.” The certificate bore this further provision : “This certificate, issued by the Sovereign Camp of the Woodmen of the World by its authority witnesseth that Sovereign Thomas A. Stark * * * is, while in good standing, * * * entitled to participate in its beneficiary fund to the amount of one *575thousand dollars, payable at his death to his wife, M. L. Stark, by this Sovereign Camp * * * This certificate is issued and accepted subject to all the conditions on the back hereof, and all the conditions named in the Constitution and laws of this fraternity, and liable to forfeiture if said sovereign shall not comply with said conditions, constitution, and laws, and such bylaws and rules as are or may be accepted by the Sovereign Camp, * * * of which he is a member at the date of his decease.”
When the certificate had been in force for twenty years and all assessments had been paid, Stark and his wife commenced a suit in equity for the purpose of obtaining a mandatory injunction against Sovereign Camp, Woodmen of the World, to compel it to issue and deliver to Stark a paid-up beneficiary certificate for $1,000, and to enjoin the organization from collecting or attempting to collect other dues from him, and also to recover of the association certain dues paid by him after the expiration of the twenty-year period, averring that he had in 1897 obtained a certificate or policy from said association containing a clause relieving him from payment of dues after the expiration of twenty years from its date, and that said period had expired in 1917, before the commencing of the action, but that said association was threatening to cancel and annul his certificate unless he continued to pay all dues and assessments made by the camp on him as a member.
The court denied the relief as prayed for by the petitioners. In the course of its opinion the court uses this language: “Perhaps the most potent reason why the appellants are not entitled to the relief prayed is the fact that Stark, by his application for and acceptance of the certificate, bound and obligated himself to abide by all laws of the order then in force or which might thereafter be adopted by the society while he was a member. He thus yielded his right, if any he had, to complain of the change in by-laws and terms of the certificate with reference to term insurance, or containing a clause ‘Payments to cease after 20 years.’ Even had Stark, under his original certificate and contract, been entitled to the benefits of the 20-year term, he agreed that the association might change that or any other term of the certificate, or the laws of the order affecting the same, and that he would abide the results.”
These principals of law are sustained in the case of Wright v. Minnesota Mutual Life Insurance Company, 193 U.S. 657, 24 S.Ct. 549, 48 L.Ed. 832.
It is also contended that the certificate was void ab initio, and therefore that all dues paid by McCrory should be recovered from the Society. The authorities do not sustain. this proposition. Suppose for illustration that McCrory had paid his dues, as assessed against the certificate, for four or five years which would amount to about $100. He then dies. His widow being his beneficiary brings suit for $2,000, the face of the certificate. Could the Society then take the position that the certificate was void ab initio and tender to the beneficiary the paltry sum of $100 in full settlement of certificate. This would indeed be atrocious doctrine and I cannot conceive of any court adopting such a doctrine as the rule of law to be applied in such contingency.
If the certificate was void forty-two years after its issuance then it was likewise void five years after its issuance.
McCrory did have full coverage for twenty-five years and he could have continued the coverage by payment of the dues assessed against the certificate throughout his lifetime; in other words, he held a certificate or policy which old line insurance companies denominate as “ordinary life”.
I am in complete accord with the opinion as written by the Special Chief Justice in the case, and concur in his opinion to the effect that the case should be reversed and rendered.