*1 130 Higbee remanded. judgment is reversed and cause and Hen-- n
wood, CC., concur. foregoing opinion by 0., adopted PEE. CURIAM: The Davis, judges All of the concur. of the court. Argus Cox The State ex rel. Benefit Association et al., Judges Springfield Appeals. (2d) S. Court of W. Two, 6, 1928.
Division October *2 George Fulton, A. Allen, W. <& B. Irwin Bushman and Ward & Beeves for relator. Mayes respondents.
Von *3 judgment HIGBEE, quash opinion and C. Certiorari Springfield Appeals Spencer Court Charles Association, 297 Benefit S. W. 989. May County, in the Court of Pemiscot Charles
On Circuit association, Spencer relator, domiciled in a fraternal benefit sued the doing Missouri, business in on two benefit State of Kansas and wife, Spencer, relator, in Birdie A. certificates issued to his Spencer beneficiary, $1000 recover on each Charles certificates petition the usual two counts certificates. The said were forfeited for certificates form. answer averred and the facts re- of the relator non-payment of dues. The *4 suspension constituting pleaded; of member were the the lied on as when said certificates pay her dues on failed to that the insured month, during 1, 1924, or that they November due on became paid the does for 1924; she suspended on that December 30, 1924, a time when December at December, 1924, on November and report did good health, who local financier to the was not she at Kan- Topeka, office Spencer’s the relator’s head ill-health to Mrs. her payment of association sas; the of the that under she good health at the time warranty she was was a that dues duty local officers to learn the dues, not the of paid it was said health; were remitted said dues of that report her or on the condition January said officelearned as soon as 8, 1925, head officeon to the paid for her dues money so Spencer good health, the was not Mrs. by her. was returned to and refused plaintiff in reply pleaded his that local The financier whom to paid Spencer’s had full Mrs. dues were state of said 30, 1924, and paid December relator retained said health on dues Spencer objection inquiry without Mrs. as to the state her length Spencer time, unreasonable which led health for an Mrs. payment in time was not essential. lo believe judgment in the trial court, Plaintiff was affirmed recovered Appeals. appeal Springfield Court of After an unsuc- rehearing out for the relator sued a writ of certiorari cessful motion opinion quash judgment of Appeals, being the Court of as to court. with decisions of this in conflict Appeals: quote from the the Court of I. We Association, (Mo. Benefit “Wagner App.) S. W. quite cause at similar to the bar and involved Section case by-laws. In that 1.14 case the defense was that of defendant’s timely pay lapsed because the insured had failed had to certificate March, paid 1921. March assessment was her assessment April 7th, and it was contended at financier on to the local good Wagner It was shown in was not in health. the insured time during period insured was a member of defendant as- case that customarily paid time; in- her assessments out sociation she paid up them in the month when due she to as paying them stead succeeding month. financier The local testified 12th of the late as the council and that from 1600 members were about that there customarily their after the paid dues end of the 100 members to pleaded This custom was were due. in which the assessments month of defendant of its au- as waiver on Wagner case in the policy certificate for failure forfeit the thority under its de- It was there held that March assessment. timely pay certificate. forfeit the to- waive its fendant did challenges vigorously in the cause at bar in its brief “Defendant Kansas reached ruling and conclusion correctness Wagner and asks us not to follow in the case Appeals City Court of support relies to which defendant grounds upon One of the it. by- involved is its estoppel is waiver or question of that no contention by-law, 120a, Section reads Defendant’s waiver. relative to law ‘ or notice to knowledge of bound Council National follows: of this association officer of local councils. No or members thereof, authorized officer, or member Council Local nor by-laws of this association any provision waive permitted association, and the member between the contract to the which relate Neither enacted. force, *5 or hereafter now be the same whether any or notice to knowledge obtained any information or shall thereof, any or to or or member or officer subordinate council T““i CO' knowledge be held or construed to person, other be or to the notice or thereof, National Council the officers until after said information given writing to Secretary notice be the National of as- sociation.’ supra, provides defendant’s by-laws,
“Section set out days suspended sixty a than member for less be can reinstated paying arrearages, provided all the member at pay- the time of such good is in health. Tt is contended ment that when insured’s Novem- paid was on December 30th good ber assessment she was eligible that, therefore, and she was not health for reinstatement and reinstated; that by could not and was Section 120a of be is not what the defendant bound local financier did or attempted to do. 6418, provides
“Section Revised Statutes that the constitu- beneficiary society may provide and laws a fraternal tion no body or the officers members thereof shall have subordinate authority any provisions waive power or its laws and provision and that a in the laws and constitution, constitution beneficiary society binding be on fraternal shall of a beneficiaries members. good was not in “It is that insured health on December conceded paid. The by-laws, November assessment was 30th when her Sections 120a, statute, plain. So are also Section 6418. Plain 114 and knowledge upon of facts of waiver as bar relied tiff at contends brought head home to council and by him were defendant’s knowledge permit notwithstanding this defendant continued to receiving ITayti her in at to continue custom local financier requir dues of others time without and the out sured’s dues reported monthly good health. She ing evidence defend pre members, giving reinstated remitted names ant, delinquents. and for collections from The collections month’s vious members, report the health of reinstated made no financier on. local by-law appears requiring had far as no or rule so and defendant showing at head office mem report When was received such. inquiry accepted as to health of without reinstated such bers bring If such a course would not home to the reinstated .members. knowledge upon by plaintiff of the custom relied actual defendant question how could be done. it de cannot conceive we then acquiescence and its therein for of this custom fendant’s under the record here. We rule that years not debatable nineteen 114 of its to invoke Section de waived its defendant recovery [Wagner cause. sued on in this certificates feat l. cited. Association, supra, c. eases there ] Benefit (Mo. App.) 290 W. Co., S. Life Ins. [See, also, Britton v. Junior 88.]
136 120a
“Section does aid pro- defendant. That section does not by-law hibit waiving the head from if and it had provisions, provision such it would be futile. a Anomolous indeed would be situation, by-law any a if, mere of kind, company, a insurance or otherwise, abrogate could the law of estoppel waiver and in this any other state. Knights
“Godwin v. Council Security, National and Ladies of 166 App. Mo. 148 S. W. involved by-law, defendant’s Sec appropriate tion language 114. There the court used as follows: provides ‘Section receipt 114 unpaid that a and retention of de linquent suspended dues assessments in case a in member good reinstating health “shall not have the effect of such member or entitling any right him or her certificate,” beneficiaries to under his whereas, provision there is no in such Section 161. But we hold that provision by-law a such in said is invalid. The has defendant no legal delinquent receipt retain dues and un assessments til the member dies then that was assert there no waiver or for right, feiture. It an of if that, amounts to assertion the the member waived, was sick recovered, died, the forfeiture was if he but, the was twenty-five forfeiture not waived. It was shown that from thirty-five per delinquent payment cent of the in members were of their It a dues. is held “that such line of conduct of members, the order and the shows that each understands there is a continuous would that such insurance. Otherwise the situation be times, except member be an would insured member at all the time his beneficiary it, would viz., need at his death.” v. Woodmen of [Cline App. Prompt payment 111 World, Mo. dues and as 601.] may dealing insured, sessments be a course of with the waived notwithstanding provides policy waiver or no forfeiture signed by shall be in an writing valid unless officer the association. 377; America, App. Modern Woodmen Mo. v. James [Andre Co., 10; World, Insurance Mo. l. c. Cline v. Woodmen of the supra.] cáse, held, it is in the Andre it would be And there doing sup and common sense alike to violence common every pose society, doing in the that a benefit business state Union, large per prompt did not know that of its were not cent members payment held, their dues. And it with knowl edge, society delinquencies payments and received waived the know within That defendant the local a reasonable time. did agent payments receiving delinquent its financial notwithstanding and, questioned, members cannot be agent financier the members the order nominated members, receipt delinquent he became of dues assessments dealing with the agent defend his course of defendant ” ant.’ ruling I. It is contended that this is in conflict with the decision of World, this court in Smith v. Woodmen of the 119, 135, 179 Mo. Judge where BURGESSsaid: waiver, therefore, "There was no condition or requirement of defendant's constitution and deceased, through any of the contract of the act of the clerk of the camp. acceptance by *7 local him of assessments under the cir- cumstances, compliance with and not a modification or waiver being true, unnecessary of defendant's law. This it is to cite author- showing clerk, ities that the under the constitution and of de- fendant, power authority company, was without to bind the or to any provision accepting waive of its law a course of conduct in payment delinquent the of assessments of members." Appeals it held Court of is that opinion of the the learned In the brought the pursued by home to defend- local financier the course upon plaintiff knowledge custom relied of the actual ant knowledge of the custom and its ac- question of defendant’s that “the years not debatable under for nineteen the quiescence therein 120a that Section not aid held does the It is further here.” record waiving the head officers from defendant; prohibit not that it does provisions it provide if it so would be futile. by-law did ruling the head officers that relator apparent that the It is ruling in conflict with question by-law in waived had that the clerk of World, supra, the local in Smith v. Woodmen authority company bind the power to without lodge “was of conduct in accepting a course any provisions law waive delinquent members.” payment of assessments testimony II. Relator also contends that `~ own showed the information `as to whether a member was sick' when he paid office; was not transmitted to the home only persons any who knew there was violation of the by-laws (if any violation) in fact there was were the local officers and members." It is contended that waiver estoppel knowledge based on of the local officers and members ruling is in conflict with the of this court in Allman v. Order of Travelers, 678, 688, United Commercial 277 Mo. 213 S. W. provides where it is said: ``The constitution of the order that no officer, agent any member or subordinate council can waive provisions relating of the constitution of the order to insurance. This part stipulation." is a of the contract sued on and is a valid apparent respondents It is also ruling that the head officers had “waived its to invoke 114 of its Section recovery iij. cause,” defeat on the certificates sued this is not on conflict ruling with Allman case.
HI. Again, it is respondents’ contended that per- “the upon mits a waiver knowledge of the local officers and does not re- quire to be that office, of the head and does require relinquishment it to be an intentional of a
right by relator,
require any
nor
showing
facts
an
intention
of relator to waive and this intention to be
unequivocal
shown
clear and
facts,” ruling
it is
said
this
is in
with
conflict
our decision in
Yeomen,
Schwab v. Am.
305 Mo.
148, 155,
At
155 in the Schwab
part:
this court said in
“A
relinquishment
waiver is an intentional
right.
of a known
To make out a
implied
legal right
case of
waiver of a
there must be
clear, unequivocal
act
party showing
decisive
pur-
amounting
pose, or acts
estoppel
to an
part.
[Citing
on his
cases.]
.
.
.
It has also been said that
in insurance cases the courts
grasp any
inclined
are
circumstances
an
indicate
election
forfeiture, although
to waive a
insufficient to create a technical
estoppel. But
even
insurance
intention
cases the
to waive must
plainly appear,
upon
or ehe the acts or conduct
constituting
relied
*8
estoppel.”
a waiver must involve
some element
Trimble,
Relator also cites State ex rel. Ins. Co. v.
The Court from the record it before found that the de- company, here, years fendant the relator for nineteen had actual knowledge by plaintiff; of the custom relied on hence there is no con- flict with the cases cited. payment during Relator ins'sts that
TV.
of the assessments
suspension
part
a
was under the
of the contract and a war-
party paying
in good health,
'"intv tliat the
and that
^])0
opinion
rrspeudents’
holding that the relator waived
ruling
is in conflict with the
of this court in
v.
provision
Aloe
Association,
561, 575,
147
So upon by Appeals. the Court of “But or ruled or dismissed not before the court either inadver- duly presented, question was if such ground it, that would no purposely be tently failed to rule proceeding we are con- quashing this character In the record. made, expressly actually either neces- only rulings with cerned (Mo.), 297 S. W. Daues sary implication.” rel. v. ex [State whether the not determine will certiorari (3).] This court on it conflicts with its own only whether but opinion wrong, 606,W. (Mo.), 287 S. v. Daues 609.] rel. opinions. ex [State respondents of the between Finding conflict no attention, we must our called to court rulings of this *9 It is so ordered. issued. improvidentlv quash having writ as been Henwood, CC., concur. Davis opinion foregoing C., adopted IItgbee, PER CURIAM: The court, judges concur. All