Sovereign Camp, W. O. W. v. Todd

*660 CRITZ, Special Justice. This is a suit instituted in the district court of Comanche' county, Tex., by Laura Todd and her husband against the Sovereign Camp-, Woodmen of the World, on an insurance policy dated the 11th day of December, 1917, issued by the defendant, a corporation, on the life of Hyman B. Todd, in the sum of $2,000. This plaintiff, Laura Todd, was the mother of the insured and the beneficiary named in said policy. The policy contained a provision that if death occurred within the first year the beneficiary should receive one-half the face of the policy, if during the second year, $1,500, and the face of the policy if death occurred after the second year. The evidence is undisputed that the insured died during the first year. Hon. J. R. McClellan, judge of the Fifty-Second judicial district, having disqualified himself from trying the casé by reason of his membership in the appellant society, upon agreement of the parties the case was tried before Hon. Mart McGee, as special judge. The case was tried without a jury, and on the 2d day of December, 1922, the court rendered judgment in favor of the plaintiffs for the sum of $1,242.33, with interest at 6 per cent, from that date. The policy contained the following provision written on the back thereof: “In the event the holder of this certificate should die while serving in any branch of the United States Army and Navy either as an officer or enlisted. man, outside the boundaries of the United States of America, the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Eraternal Table of Mortality: Provided, that should the holder of this certificate so desire, he may within thirty (30) days after entering the service in any branch of the United States Army or Navy, as an officer or enlisted man, notify the Sovereign Clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America and pay in advance to the Sovereign Clerk, for the society, the sum of $37.50 (thirty-seven and 50/100 dollars) per one thousand dollars insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign Camp of the Woodmen of the World; and upon so doing at the death of the member or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries: Provided, further, that should any member of this society who has entered the service of the United States Army or Navy, either as an officer or enlisted man, pay the additional war risk of $37.50 per one thousand dollars per annum and die in the United States, without having served outside the boundaries of the United States of America, the total amount paid by him as war assessment shall be refunded to his beneficiary or beneficiaries.” The trial court filed his findings of fact and conclusions of law, which, in substance, found, among other things, that, at the time of his death, the insured was enlisted in the noncombatant branch of the military service of the United States, and had been in such service for more than 30 days prior to the date of his death, and, in this connection, it is undisputed that the insured died outside the boundaries of the United States and while serving in the noneombatant branch of the United States army in France. It is the contention of the appellant that, it appearing from the pleadings and the evidence that the amount recoverable under the terms of the certificate of insurance was limited to a small proportion of its face value, in the event the insured died outside the boundaries of the United States, while in the military service of the United States, unless the member should within 30 days after his entry into such military service notify the Sovereign Clerk of the appellant society at its home office in Omaha, Neb., of his entrance and service, and pay to said sovereign clerk the sum of $37.50 per $1,000 of insurance per annum in .addition to the regular assessment, and that the insured having died in France while in the military service of the United States, without having given such notice to the Sovereign Clerk and without having paid such additional assessment to the Sovereign Clerk, his beneficiary is only entitled to recover the small amount provided in the above quoted clause of said policy. It is the contention of the appellees that the notice provided for in the above quoted clause was given the clerk at the local camp at Comanche, Tex., and tender of the additional assessment also provided for was made to said local clerk within the time provided for by the policy. The insured was a'member of the local camp at Comanche, Tex. It is further the contention of the appellees that such local clerk refused said tender — that is, refused to accept the payment of said additional assessment. It is our opinion, and we so find, that the insured did make tender of said additional assessment to the local clerk of the Comanche camp, and that notice was given to said local clerk of the entrance of the insured into the military forces of the American army, and of his service in said army beyond seas and that such local clerk refused to receive such additional premium, and by his acts and conduct waived the payment of such additional premium, if he had the right or authority to do so. The appellee had pleaded that notice and tender was made to the local clerk, and pleaded waiver and estoppel. The certificate of insurance made the basis of this suit also contained the following provision: “No camp nor officer thereof, nor any officer, employee or agent of the Sovereign Camp has *661 authority to waive any of the conditions of this beneficiary certificate or of the constitution and laws of this society.” Section 69 of the constitution and laws of the appellant was introduced in evidence, and read as follows: “(a) No officer, employee, or agent of the Sovereign Camp, or of any camp, has the power, right, or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or the laws, nor shall any custom on the part of any camp or any number of camps, with or without the knowledge of any Sovereign officer, have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the constitution and laws, then in force thereafter enacted. “(b) The constitution and laws of the Sovereign Camp of the Woodmen of the World now in force or which may hereafter be enacted, by-laws of the camp now in force, or which may be hereafter enacted, the application and certificate shall constitute a part of the beneficiary contract between this society and the member,” The trial court found as a matter of law that the clerk of the local camp at Comanche was the agent of the Sovereign Clerk of the defendant company, for the time covered from the date of the certificate to the death of the insured, and that as such agent he had authority to collect any and all dues and assessments of every kind and character from the membership of the local camp, including the extra assessment of $37.50 per $1,000 of insurance; and that notice to the local clerk was notice to the defendant company and to the Sovereign Camp. The trial court also found as a matter of law that 'the tender of payment of the extra assessment above alluded to to the local clerk was, in law, the tender of the assessment to the Sovereign Clerk of the Sovereign Camp, and that the defendant is estopped to rely upon the failure of the said Hyman B. Todd to give notice to the Sovereign Clerk, and to tender to the Sovereign Clerk directly the extra assessment in question. We have diligently searched the statement of facts for evidence to sustain these findings, and we are unable to find any evidence in the record that will sustain them. The local clerk is not shown to have ever received any authority from the Sovereign Clerk or Camp to receive this notice or to collect the extra war risk assessment, but, on the contrary, the local clerk seems to have been under the impression that the Sovereign Camp did not desire its collection. It is shown that he had collected for many years all other dues and assessments, but under the express provision of the policy this extra war risk assessment was payable to the head clerk at Omaha; Neb., and the notice should have been given to such head clerk. It is true that the local clerk does testify that he had such authority, but his statement is a pure conclusion and absolutely contradicted' by the facts ■ and by the plain provisions of the policy. Authority for the proyision of the constitution and by-laws of the order, and for the provision in the certificate of insurance quoted above, in so far as applies to the matters involved in this case, with reference to the power of agents, etc., to bind the main order by waiver, is found in our Revised Civil Statutes 1925, art. 4846 (old No. 4847), which reads as follows: “The constitution and laws of the society may provide that no subordinate body nor any of its subordinate officers or members shall have the power or authority to waive any provision of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiaries of members.” The statute above quoted is, in our opinion, valid, and the appellant is such a society as comes directly under its provisions. It is true that there are cases which seem to limit the effect of this statute, but a careful reading of these cases will show that they merely hold that the general principles of the law of agency apply to these associations in like manner as to other associations and individuals, and that when the association delegated to a local body or officer some duty to be performed for the association, that such association is bound by the acts of the agent within the scope of the delegated duties. Calhoun v. Maccabees (Tex. Com. App.) 241 S. W. 101. See, also, the case of Sovereign Camp, W. O. W., v. Putnam (Tex. Civ. App.) 206 S. W. 970: and Sovereign Camp, W. O. W., v. Miller (Tex. Civ. App.) 220 S. W. 635. The distinction to be drawn between this case and the Maccabees Case above referred to is that in the Maccabees Case payment and notice was expressly provided under the plain terms of the policy to be given to the local clerk, and thus the local clerk was made the agent of the order. In this case the clause in the policy is clear and unambiguous that both the notice and the payment shall be made to the Sovereign Clerk of the ordpr at Omaha, Neb., its home office. In the Maccabees Case the local clerk had authority to receive the notice and collect the assessment; in this case the local clerk did not have authority to either receive the notice or collect the assessment. Being of the opinion that the record shows affirmatively amj conclusively that the local clerk was without authority to collect the extra war risk assessment, or to receive the notice provided for in the policy, made the basis of this suit, then the acts of the local clerk could not bind the Sovereign Camp or the Sovereign Clerk either by waiver or estoppel. *662 The identical question involved in this suit has heretofore been decided by this court in the case of Sovereign Camp, W. O. W., v. Jackson et al., 264 S. W. 289, opinion by Judge R. B. Cofer, special justice. We here cite that ease with approval. There is some little discrepancy as to the amount due t.o be paid under the construction we have given this policy in the light of the evidence and pleadings, but, as the Sovereign Camp offered to pay and has tendered $93.44, and as that amount will more than pay the amount due under the terms of the policy and the evidence, and as the facts in this case seem to have been fully developed, and no purpose could be attained by reversing and remanding this case; it is therefore ordered that the judgment of the district court be reformed so that the appellee, Mrs. Laura Todd, shall recover said sum of $93.44, with interest from this date at 6 per cent, per an-num, and the judgment of the lower court is reversed and rendered as to the balance of the sum recovered by appellees in the district court. It is further ordered that appellees pay all costs of this appeal. Reformed in part, and in part reversed and rendered. BAUGH, J., concurs.