97 So. 654 | Ala. | 1923
Appellee is a fraternal beneficiary society, and issues to its members benefit certificates of insurance. The husband of appellant became a member of the order, taking out a benefit certificate payable to her, and upon which she brings this suit. This appeal brings for review the rulings of the trial court upon the pleadings. It is not deemed necessary to specifically treat these pleadings and the rulings thereon, but a general statement of the facts therein disclosed will suffice.
The certificate was issued on the life of H. W. Yarbrough on February 7, 1920. Insured defaulted in the payment of the assessment due on January 1, 1921, and his suspension from the order followed on February 1st thereafter, the benefit certificate becoming void. On March 14, 1921, an effort was made to reinstate said Yarbrough by paying assessments for January, February, and March, 1921, to the clerk of the local camp; insured being sick on that date, and dying six days later. There was no written statement or certificate of health, but the local clerk accepted the payment for purposes of reinstatement.
It is not controverted that under the previous decisions of this court, construing Acts 1911, p. 700, the action of the local clerk was without any binding effect upon the defendant order. Sov. Camp v. Gay,
Upon the question of waiver by its officers as to the rules of an order of this character, so as to bind the order, there appears to be a diversity of opinion. See authorities cited in Sov. Camp v. Allen,
We are of the opinion, however, that no such binding waiver is shown by the averments of the pleadings in this case. The waiver is predicated merely upon the retention by the Sovereign Clerk of these past-due assessments after knowledge of the facts, and reliance is had upon Sec. Mut. Life Ins. Co. v. Riley,
"A reception of this money by the clerk after his [insured's] death could have no retroactive effect in the way of reviving the policy."
To like effect see Dillon v. Knights of Security,
Indeed, the question seems to have been decided by this court in Sov. Camp. v. Eastis, supra, wherein it was in effect held that no waiver of binding force was shown, for the reason that "at the time of the receipt and inspection of the certificate as to the reinstatement of Eastis by the Sovereign Clerk, said Eastis was dead," citing Cherokee Life Ins. Co. v. Brannum,
The conclusion is reached, therefore, that the court correctly ruled, and the judgment is accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.