Flowers v. Sovereign Camp, W. of the W.

SPEER, Associate Justice. This suit was instituted by appellant, Lucy M Flowers, to recover the sum of $1,000 from the appellee, the Sovereign Camp W. O.'W., upon a beneficiary certificate issued to J. B. Flowers in her favor as his wife on the 23d day of Uovember, 1898. She alleged all facts necessary to show a liability upon the part of the defendant, and also that Cleo Humphries was claiming some interest in said certificate, and made her a party defendant to the suit. Mrs. Humphries answered alleging in substance that for ten years prior to J. B. Flowers’ death she had been a member of his household and was dependant upon him for a support, and that upon the 26th day of March, 1904, three days prior to his death, he had designated her as the beneficiary in said certificate in lieu of his wife, Lucy M Flowers, in accordance with the constitution of the defendant company. The Sovereign Camp W. O. W. admitted in its answer that it was liable on said certificate for the sum sued for, but was unable to determine to whom the same should be paid, and paid the $1,000-into court to abide its judgment. The case was tried by the court and resulted in a judgment in favor of Cleo Humphries. In the view we take of the case, the entire controversy is determined by the interpretation to be given to section 64 of the constitution of the Sovereign Camp W. O. W., which is as follows: “Should a member desire to change his beneficiary or beneficiaries he may do so upon payment to the Sovereign clerk of a fee of 25 cents, which sum together with his certificate he shall forward to the Sovereign clerk with his request written on the back of his certificate giving the name or names of such new beneficiary or beneficiaries. Upon receipt thereof the Sovereign clerk shall issue and return a new certificate subject to the same conditions and rate as the one surrendered, which conditions shall be a part of the new certificate, in which he shall write the name or names of the new beneficiary or beneficiaries and shall record said change in the proper books of the Sovereign Camp. “In the event the beneficiary’s certificate is lost or the possession thereof is for any reason withheld from the member desiring such change of beneficiary, before the change shall be made the member shall furnish the Sovereign clerk satisfactory proof under oath of the facts of the loss of the certificate, or proof under oath of the facts and circum *598 stances of the withholding of such certificate from its possession, as the case may be, and waiving for himself and beneficiary'or beneficiaries all rights thereunder, whereupon on payment of twenty-five cents the Sovereign clerk, if such proof is satisfactory to him, shall issue to said members a new certificate in lieu of the old one with the desired change of beneficiary.” On March 26, 1904, J. B. Flowers made out and swore to the following application for change of beneficiary: "Application is hereby made to the Sovereign clerk of the Sovereign Camp, Woodmen of the World, for the issuance of a duplicate certificate of membership in said fraternity. There was delivered to me on or about the 8th of December, 1898, Beneficiary Certificate No. 28535 for the amount of $1,000, payable to Chas. N. and A. C. Flowers who are dependent children of the undersigned. I was at that time a member of Lone Star Camp No. 2, located at Fort Worth, State of Texas. Said certificate has been lost or (destroyed) and after diligent search I have been unable to find same. I hereby certify that said certificate has not been by me assigned to secure payment of any sum of money to any person whatsoever, and has not been otherwise disposed.of by me. To the best of my knowledge and belief it is not in existence. "In consideration of the delivery to me of a duplicate I do hereby waive for myself, my heirs, assigns and devisees all rights and payments of benefits or payments due, or which may become due under and by virtue of said lost or destroyed certificate, and agree to accept said duplicate in lieu of and as substitute for same, and do for myself, my heirs, assigns, and devisees hereby relinquish all claims for payment by said Sovereign Camp, Woodmen of the World, of any sum or sums in excess of the amount stated in said duplicate certificate, in case of my death. Witness my hand at Fort Worth, State of Texas, this 26th day of March, 1904. (L. S.) J. B. Flowers, Attest: J. A. Todd, Clerk. (Lone Star Camp.) "You are hereby authorized to malee my new certificate issued in place of certificate lost or destroyed, payable to Mrs. Cleo Humphries, who bears relationship to me as dependent. (State wife, children or dependent, as you desire), and I hereby revoke my former direction or designation of beneficiary. J. B. Flowers. "Sworn to and subscribed before me by J. B. Flowers this the 26th day of March, 1904. (L. S.) T. W. Dunn, Notary Public in and for Tarrant Co., Texas.” (Ón back) : "Received by Sovereign clerk, April 1, 1904, Cts. Fee paid.” This application was delivered by Flowers to one J. T. Todd, clerk of the local camp W. O. W., to which Flowers belonged, with the request that he send it to the Sovereign clerk, and Todd mailed the same to Yates, the Sovereign clerk at Omaha, Nebraska, the home office of the appellee company, on April 1, 1904, but after the death of J. B. Flowers. It is the contention of appellee Humphries, and the court *599 so found as a fact, that it was contemplated by the Sovereign Camp W. O. W. and Flowers at the time the certificate was issued that the United States mail should be employed in order to forward to the W. O. W. any application made by Flowers to change the beneficiary in his certificate, and the application in this case having been deposited in the United States mail prior to the death of Flowers, that therefore the change of beneficiary was perfected before Flowers’ death. This contention and finding has no basis whatever in the evidence unless it is supported by the provisions of that section of the constitution of appellee order heretofore quoted. An examination of the section in question will disclose that a method of change is prescribed, first, where the member is in possession of his certificate, and second, where such certificate is lost or its possession withheld from the member desiring such change of beneficiary. In the first case it is provided that the change may be made “upon payment to the Sovereign Camp of a fee of twenty-five cents, which sum together with his certificate he shall forward to the Sovereign clerk with his request written on the back of his certificate, giving the name or names of such new beneficiary or beneficiaries.” Here the authority to “forward” the request might support the contention that the United States mail, the customary agency, was the means intended to be used. The Camp might be willing in such case, where the certificate itself was forwarded to it, to treat'the United States mail as its agent, and a delivery to such agent as a delivery to it. But in the event the beneficiary certificate is lost or otherwise out of the possession of the member, an entirely different method of changing the beneficiary is prescribed in which the authority to “forward” is not given. In such latter case it is stipulated “before the change shall be made the member shall furnish the Sovereign clerk satisfactory proof under oath of the facts.of the loss of the certificate, or proof under oath of the facts and circumstances of the withholding of such certificate from his possesion, etc.,” as set forth in the latter part of the section already quoted, thus evidencing to our' mind the intention that the request and proofs contemplated by the section of the constitution should be actually furnished to the Sovereign clerk, and not constructively so by reason of a delivery to the United States mail. This view is strengthened by the provision in the constitution giving to the Sovereign clerk the power to pass upon the sufficiency of the proof furnished. It is well established that in the absence of agreement express or implied that the mails may be used as a means of acceptance of the terms of an offer, the one employing such means constitutes it his agent, and that the offer or acceptance, as the case may be, is subject to be recalled at any time prior to an actual delivery of the communication. (Scottish-American Mortgage Co. v. W. S. Davis, 96 Texas, 504. This being our construction of the constitution and there being no other evidence tending to show that, it was contemplated that a delivery of the application to the United States mail should be treated as a delivery to the Sovereign clerk, and the actual delivery to the Sovereign clerk having been made after the death of Flowers and at a time when the rights of appellant Lucy 1ST. Flowers had become vested, the judgment of the trial court should be reversed and here rendered in favor of appellant. *600 There is also another sufficient reason why the judgment should have been rendered for appellant. An examination of the application, which was refused by the Sovereign clerk because not in compliance with section 64 of the constitution, will disclose that its terms are materially different from those required by section 64. Under all of the authorities the constitution of the benefit order becomes a part of the contract of insurance, and where that instrument points out the method by which a change of beneficiary may be effective, it is exclusive of all others and must be, at least substantially, complied with. (Splawn v. Chew, 60 Texas, 532; Coleman v. Anderson, 86 S. W. Rep., 732; Shuman v. Ancient O. U. W., 82 N. W. Rep. (Ia.), 331; Grand Lodge A. O. U. W. v. Candy, 53 Atlantic Rep. (N. J.), 142; Fink v. Fink, 64 N. E. Rep. (N. Y.), 508; Hall v. Northwestern Endowment Assn., 49 N. W. Rep. (Minn.), 524; Hotel Men’s Mutual Benefit Assn. v. Brown, 33 Fed. Rep., 11; Modern W. of A. v. Little, 86 N. W. Rep., 216; Legion of Honor v. Smith, 45 N. J. Eq., 466, 17 Atlantic Rep. (N. J.), 770.) In this case the appellant at least failed to waive the rights of the beneficiary, Lucy N. Flowers, as the contract required that he should do. The principle is invoked by appellee that where the insured had done all in his power to bring about the substitution of the beneficiary and there remains nothing to be done but the formal act of making the substitution by the insurance order, the change should be considered as effected. While the principle is a sound one and has abundant support in the authorities, yet it clearly can have no application to the present case, for undeniably the insured at the time of his death had not done all within his power to bring about a change of beneficiaries; indeed, he had had about seven years during all of which time there is nothing to have prevented his complying literally with the terms of his contract to furnish the character of application and proof required by the order. The authorities cited by appellee are therefore not in point. Neither can the transaction be treated as an assignment of the benefit certificate to Cleo Humphries, for the reason that as a gift the same would be void, since there was no delivery or written transfer of the certificate to her. (Lord v. New York Life Ins. Co., 95 Texas, 216.) Besides, by the terms of the contract of insurance the only authority of disposition held by Flowers was through a change of beneficiary in the method prescribed by the constitution. Reversed and rendered for appellant. Reversed and rendered.