136 Tenn. 233 | Tenn. | 1916
delivered' the opinion of the Court.
This is a suit on a beneficiary certificate brought by the widow of Horace Gr. Simmons, as beneficiary. The association defends on the ground that the deceased joined the order in the State of Arkansas at a time when he was engaged in farming, and paid throughout after1 life the premium sums assessed against farmer members, and that on his removal to this State he had changed his occupation to that of locomotive fireman, without giving notice within thirty days required by the laws of the order, and without thereafter paying the increase in the premium required from those engaged in the more hazardous employment. Simmons was killed while working as a fireman.
The constitution and laws of the order contained a provision that any member, failing to notify the clerk
The case was tried before the chancellor and a jury, and on an issue submitted the jury found that notice had been given by Simmons of his change of occupation from farmer to fireman, to the clerk of the local camp in Arkansas, within thirty days; but we find no testimony which supports the finding.
Another issue submitted was: Did the local camp, with full'knowledge of Simmons’ change of occupation, accept the dues of a farmer from him with the intent to waive the forfeiture provided for in his certificate, and lead him to believe that no forfeiture was claimed on account of hifc change of occupation?
To this issue the jury responded in the affirmative.
There is some evidence tending to show that, about six months after the lapse of the thirty-day period, notice was given to the clerk of the local camp of the change in occupation; but knowledge or acquiescence on the part of the sovereign officials of the order was negatived.
We think it is manifest that there can be no 'recovery; and that the motion for peremptory instructions interposed by the order should have been sustained, on, the ground that it was not within the power of the local camp or its clerk to waive the forfeiture provision,'
“The constitution and laws of the association may provide that no subordinate body, nor any of its officers or members, shall have the power or authority to waive any of the provisions of the laws and constitution of the association, and the same shall be binding on the association and each and every member thereof.”
The suspension and forfeiture continued for a period of more than three months.
Among the limitations on the power of the local officials, in the laws of the order is one that the clerk of a camp shall not, by acts, representations-, waivers, or by vote of his camp, have any power or authority not delegated to him or to the camp by the constitution ' and laws.
By another clause it is provided that no such official has the power or authority to waive any conditions upon which the beneficiary certificates are issued, or any provision of the constitution or laws.
It is competent for an order of the character of this kind, to thus limit the .authority of their subordinate, local agents, and when this is done such agents cannot, by any acts of estoppel or waiver, nothing else appearing, bind the association.
In Modern Woodmen of America v. Tevis, 117 Fed., 369, 54 C. C. A., 293, it was said:
*237 “The acts of this local clerk beyond the scope of his prescribed authority, in the absence of notice or knowledge of and acquiescence in them by some of the principal officers of the society, constituted no waiver, estoppel, or contract of the association. They were not the acts of the society, and the insured and the beneficiaries were charged with knowledge of that fact.”
See, also, Brittenham v. Sovereign Camp, W. O. W. (Mo. App.), 167 S. W., 587; Jones v. Modern Brotherhood of America, 153 Wis., 225, 140 N. W., 1059; Bacon, Benefit Societies (3d Ed.), sec. 434.
The case is clearly to be differentiated from Foresters v. Cunningham, 127 Tenn., 521, 156, S. W., 192. In that case it- appeared that the act of waiver or estoppel was that of a deputy supreme chief ranger, with headquarters in Nashville, and that he “was invested with all the authority and power which pertain to the chief executive officer of the order within the territory over .which he had jurisdiction.” The court held in favor of the beneficiary, since that officer exercised the power of the sovereign camp in so far as the act relied upon as a waiver was concerned. Reversed and bill of complaint dismissed.