
    SOVEREIGN CAMP, W. O. W., v. AYERS.
    (No. 3031.)
    (Supreme Court of Texas.
    April 25, 1924.
    Motion for Rehearing Overruled June 12, 1924.)
    1. Courts <&wkey;247(5) — Supreme Court has no jurisdiction to answer certified question of mixed law and fact.
    Jurisdiction of Supreme Court being limited to questions of law only, it cannot answer certified question of mixed law and fact.
    2. Insurance &wkey;>720 — What necessary for re- . covery on fraternal benefit certificate never delivered stated.
    To recover on fraternal benefit certificate which local camp clerk had failed to deliver because of insured’s health, it was incumbent upon plaintiff to show that certificate had been fnade out and was ready for delivery, that insured had applied for it, and had done all he was required to do to obtain it.
    &wkey;»For other cases see same topic and KE¥-NUMBER in all Key-Numbered Digests and Indexes
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by W. A. Ayres, as next friend, against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, defendant appealed, and question certified.
    Question answered.
    A. H. Burnett, of Omaha, Neb., and Dewis Rogers, of Houston, for appellant.
    J. W. Chancellor, of Bowie, for appellee.
    The members of the Supreme Court being disqualified to sit herein, a special court, consisting of Special Chief Justice I. W. STEPHENS, of Fort Worth, Special Associate Justice H. C. GEDDIE, of Kerrville, and Special Associate Justice S. W. BLOUNT, of Nacogdoches, sat for the consideration of this case, wherein the following opinion was handed down:
    The Court of Civil Appeals has certified to this court for determination a question of the sufficiency of the evidence to sustain the trial court’s finding as to the state of H. W. Ayerd health on the 8th and 9th days of October, 1915.
    Before stating the precise question certified, we quote from the certificate of the Court of Civil Appeals the following statement:
    “The suit was instituted in the district court of Montague county by W. A. Ayers, as next friend for Bertie, Emma May, S. Ray, Grady, Iva Belle, and Cecil Ayres, minor children of H. W. Ayres and wife, Dora M. Ayres, both deceased. The suit is based upon a policy or certificate of insurance issued by the appellant, a fraternal beneficiary association organized under the laws of Nebraska and doing business by and through a local lodge system under a permit to do business in this state. The beneficiary certificate was issued on the 6th day of October, A. D. 1915, and duly signed by W. A. Frazier, the Sovereign Commander, and J. T. Yates, the Sovereign Clerk, attested by the corporate seal of the order named. It was thereby provided, among other things, that in the event of. the death of ‘Sovereign H. W. Ayres, a member of Salona Camp No. 1324, located at Salona, state of Texas,’ during the first year of his membership, the minors above named would be entitled to participate in the beneficiary fund of the order to the amount of $506, payable at the time of the death of said H. W. Ayres, together with a further sum of $100 for the erection of a monument to the memory of the said H. W. Ayres.
    “The certificate further ”eeites, so far as necessary to notice, that ‘this certificate is issued and accepted subject to all the conditions oh. the back hereof, the articles of incorporation, the constitution and laws of the Sovereign Camp of the Woodmen of the World * * * the application for membership, and the medical examination of the member herein named, as approved by the Sovereign Physician of this society, and this certificate shall constitute an agreement between the society and the member.’
    “Among the conditions referred to and made part of the certificate, we quote the following: ‘If the entrance fees, dues, and Sovereign Camp fund assessments are not paid by the person named in the certificate to th'e clerk of the camp, as required by the constitution and laws of this society, which are now in force, or which may hereafter be adopted, this certificate shall be null and void. There shall be no liability of the Sovereign Camp of the Woodmen of the World under this certificate until the member named herein shall have paid all entrance fees, one advance assessment or installment of assessment of Sovereign Camp fund, and camp fund dues for the month, signed his beneficiary certificate and the acceptance slip attached thereto, paid the physician’s fee for examination, been obligated and introduced by the camp clerk or authorized deputy, in due form, and had manually delivered into his hands in person this beneficiary certificate while in good health. The foregoing provisions are hereby’ made a part of the consideration for, and are conditions precedent to, the payment of ben-' efits under this certificate.’
    
      “H. W. Ayres’ application for this certificate was made and duly accepted by the local camp at Salona on September 10, 1915; medical examination was had on September 11, 1915; the application and report of the medical examiner was received at the home office of the appellant order in Omaha, Neb., on September 15, 1915, and was referred to the Sovereign Physician’s office, who found H. W. Ayres overweight, and forwarded to H. W. Ayres an agreement, called a substandard rating, for the payment of an additional sum upon assessments. This substandard agreement was signed by H. W. Ayres on September 24, 1915, and returned to the office of the Sovereign Physician, and by him approved on October 6, 1915, whereupon the certificate sued on herein was issued by the Sovereign Clerk on the same day and duly mailed to the clerk of the local camp at Salona for delivery, where it was received on the 8th day of October, 1915.
    “At the time the substandard agreement was signed by the applicant, H. W. Ayres, he was introduced by the local camp in the manner and form prescribed for the introduction and duly obligated as a member of the order. At the same time H. W. Ayres left with the local camp the sums of money necessary to cover all advance payments required under the by-laws of the order.
    “Appellant defended the suit upon the ground that H. W. Ayres had not complied with the conditions precedent as contained in the contract sued upon.
    “The case was tried by the court without a jury, and the court rendered judgment in favor of the plaintiff for the sum of $500 on the certificate, and the further sum of $100 for the monument, providing that the defendant should have the right to discharge this part of the judgment by erecting a monument in accordance with its laws and the terms of the contract referring thereto.
    “It is undisputed in the evidence that Mr. A. J. Dudley, the clerk of the Salona Camp to whom the certificate was sent, never in fact delivered the certificate to H. W. Ayres, nor was the certificate signed by the Consul Commander of the camp, nor did H. W. Ayres ever sign the certificate or the acceptance slip thereto. The evidence, however, without doubt, authorizes the conclusion that all these things would have been done except for the fact that Mr. Dudley, upon receipt of the certificate, and upon visiting H. W. Ayres for the purpose of delivering the certificate, then concluded that Mr. Ayres was not in good health and that, hence, by the terms of the certificate he was not authorized to deliver it,” etc.
    Following this statement in the certificate is the question certified:
    “And the question of law presented to us and certified to your honors for determination is whether the evidence submitted upon the trial was sufficient to sustain the court’s finding to the effect that' H. W. Ayres was in fact in good health within the meaning of the contract of insurance on the 8th and 9th days of October, ■when the clerk could, and hence should, have delivered the certificate.”
    This is followed by an extended quotation from the testimony of the witnesses covering 10 pages of the certificate.
    The certificate concludes with the following restatement of the question certified':
    “The foregoing testimony is all' that seems relevant, and we accordingly, as stated, deem it advisable to certify to your honors for determination the question of whether, under the facts stated and evidence quoted, the judgment of the trial court to the effect that H. W. Ayres was in good health, within the meaning of his beneficiary certificate, at the time it could have been delivered to him by A. J. Dudley, the camp clerk, and, if so, whether, under the circumstances and the evidence stated, the judgment of the trial court should be affirmed.”
   Opinion.

The testimony set out in the certificate on which the district judge is presumed to have made a finding that H. W. Ayres was in good health at the dates mentioned, in our opinion, raised a question of fact within the jurisdiction of the district court, and the evidence was such as to make his finding conclusive in the appellate court, unless in its opinion his finding was so contrary to the manifest weight and great preponderance of the evidence as to warrant the Court of Civil Appeals in declaring it to be wrong. To say the least, this evidence raised a mixed question of law: and fact. It involved the construction of the insurance contract to the extent of determining the meaning of the term good health as used in said contract, and it involved' the sufficiency of the evidence to warrant the finding that Ayres was in good health within the meaning of said term.

If the certificate had presented to this court the construction of the contract, it would have presented a question within the jurisdiction of this court, and the case of W. O. W. v. Locklin, 28 Tex. Civ. App. 486, 67 S. W. 331, would probably have been decisive of the question, but this court is without jurisdiction to answer the question as certified, since its jurisdiction is limited to questions of law only.

But in restating the question certified, the Court of Civil Appeals seem to have extended the scope of the certificate and to have propounded the inquiry whether, assuming that H. W. Ayres was in good health within the meaning of the beneficiary certificate at the time it could have been delivered to him by the camp clerk, “under the circumstances and evidence stated, the judgment of the district court should be affirmed.”

The certificate as thus enlarged is perhaps subject to the objection that it certifies the whole case to the Supreme Court for decision; but we have concluded that, as the decision of the case is made to turn upon a single question, though formulated in very general terms, we should answer it.

In our first consultation we were inclined to the opinion that the. judgment of the district court should be affirmed, on the authority of Pledger v. Sovereign Camp Woodmen of the World, 17 Tex. Civ. App. 18, 42 S. W. 653, but we have finally concluded that the case we have to decide is distinguishable from that case, which was one in which the certificate had been signed by the consul commander of the local camp, and had been issued in full compliance with the constitution and laws of the order, and was ready for delivery to pledger upon payment of the advance assessment and dues of the local camp, and the cleric of the local camp had notified him that the certificate was ready for delivery, and thereafter upon tender of the advance assessment and dues the certificate was demanded, but the cleric of the local camp refused to make the delivery, on account of the alleged changed condition of the health of Pledger. The construction placed by the Court of Civil Appeals in that case on the constitution and by-laws of the order was to the effect that the actual delivery of the certificate was not made a condition precedent, although the language there quoted from section 69 states that the six requirements there enumerated, including the delivery of the certificate, “are conditions precedent to the payment of benefits in case of death.”

Since that decision was rendered, it seems that the language of the constitution and bylaws of the order has been changed, and also the statute of Texas in reference to fraternal insurance. See Gammel’s Laws of Texas, vol. 16, pp. 220 to 237, c. 113, §§ 8 and 20; Vernon’s Sayles’ Statutes, arts. 4834 and 4847.

By section 20 of said act (article 4847 of Vernon’s Sayles’ Statutes), fraternal benefit societies were authorized, by the adoption of constitution and laws, to provide that no subordinate body, nor any of its subordinate officers or members, should have the power or authority to waive any of the provisions 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.”

It appears from the facts set forth in the certificate of the Court of Civil Appeals that it was one of the requirements of the constitution and laws of the order that the beneficiary certificate should be signed by the consul commander of the camp, and that this had'never been done; that it should be “manually delivered” into the hands of the member entitled to receive it, which was never done; that he should himself sign the certificate, and also the acceptance slip attached thereto, which was never done; and that these requirements were expressly made conditions precedent to the payment of benefits under the certificate.

There is nothing in said statement to show that Ayres had even any knowledge that the certificate had been issued, much less that he had made any demand on the clerk of the local camp for its delivery to him, and offered to sign the certificate and slip. He was a member of the society, and must be held to have known that these requirements had never been complied with. It was not enough for him to show that they would have been complied with if the clerk of the local camp had not concluded that he was no longer eligible, by reason of the changed condition of his health. It was incumbent upon those seeking to avail themselves of the benefits under the certificate to go further, and at least show that the certificate had been made out and was ready for delivery, and that the member who had applied for it'had done all that he was required to do in order to obtain it. Thus the laws of the society of which Ayres became a member are written, and it is not the province of the courts to change them.

We therefore answer that, in our opinion, on the facts stated in the certificate of the Court of Civil Appeals, the judgment of the district court was erroneous, even though it be assumed that Ayres was in good health when the certificate was received by the clerk of the local camp, and for a sufficient length, of time thereafter for it to have been delivered to him.

I. W. STEPHENS, Chief Justice.

H. C. GEDDIE, Associate Justice.

Associate Justice S. W. BLOUNT not present.

On Motion for Rehearing.

In his motion for rehearing the appellee contends that the undelivered certificate should be treated as creating liability, notwithstanding the stipulations to the contrary in the certificate, constitutions, and by-laws of the order, on the ground that the local agent of appellant was guilty of negligence in failing to deliver the certificate. But we find nothing in the facts vertified tending to show that this local agent did not act as a person of ordinary prudence would have acted under the same or similar circumstances. He seems to have acted in good faith, and to have had reasonable grounds for believing that the assured was not in good health at the time it is claimed the certificate should have been delivered.

There was neither á refusal nor a negligent failure to deliver the certificate. In such ease, we think the laws of the order should control.

The motion for rehearing is overruled.

I. W. STEPHENS, Special Chief Justice.

H. C. GEDDIE, Special Associate Justice.

Special Associate Justice BLOUNT not sitting.  