Sovereign Camp of Woodmen of the World v. Jackson , 57 Okla. 318 ( 1916 )

The trial court gave a personal judgment in favor of the beneficiary for the monument fee of $100, and in the original opinion herein the judgment was affirmed in toto. Upon rehearing the plaintiff in error strongly urges that the $100 monument fee is no part of the insurance, but is for the erection of a monument, and cannot be applied to any other purpose. The beneficiary certificate provides in its face:

"There shall also be paid the sum of $100.00 for the erection of a monument to his memory, as provided in the constitution and laws of the order."

Section 70 of the constitution and by-laws of the order on this subject reads as follows:

"(a) As soon as a death claim has been approved for payment, the Sovereign Commander, with the concurrence of the Sovereign Finance Monument Committee, who shall constitute the Sovereign Monument Committee, shall cause to be contracted for and substantially placed to the memory of every deceased member a monument of marble or granite and of such design as the committee may accept, as provided in section 3, of the full value and cost to the order of the sum of one hundred ($100.00) dollars, on which shall be carved, in a manner as directed by the Sovereign Monument Committee, the motto and emblem of the order and the words 'Woodmen of the World Memorial'; also the name, date of birth and date of death of the deceased sovereign, and such additional inscription as the beneficiary may order and pay for, if approved by the Sovereign Monument Committee.

"(b) Proposals for furnishing and placing said monument shall be obtained through a camp located nearest to the place of burial, if practicable.

"(c) When satisfactory written evidence has been received by the Sovereign Monument Committee that a monument has been erected in full compliance with the contract entered into between the order and the contractor, they shall direct that a warrant be drawn on the beneficiary fund in favor of the contractor in payment of the same."

The only case brought to our attention wherein this question has been presented is Woodmen of the World v. Locklin,28 Tex. Civ. App. 486, 67 S.W. 331, and there the beneficiary was given a personal judgment for the monument fee, but the question as to whether or not the beneficiary was entitled to a personal judgment for this $100 monument fee was not raised or directly passed upon; the court simply affirming a judgment giving the same to the beneficiary without comment on this point. As the judgment in that case was not contested on the grounds that the beneficiary was not entitled to the monument fee under the terms of the policy, that case cannot be considered as of much weight or authority on the question now presented here. Upon a careful consideration of the terms of the contract and the by-laws of the order on this question, we are of the opinion that the plaintiff in error cannot be held personally liable to the beneficiary for the monument fee in default in the erection of the monument. The only contract, as far as the beneficiary was directly concerned, was to pay the beneficiary a specified sum in money upon the death of the principal named in the policy. The erection of the $100 monument was only incident to the contract, and was for the benefit of the principal himself, to the effect that his grave should be marked by a monument of the order.

Even if it be conceded that the plaintiff in error became liable in money upon its failure to erect the monument, the beneficiary would have no right to claim the same as a beneficiary, but it would go to the estate, and the right of action therefor would be in the administrator, and not in the beneficiary. The beneficiary might be a party who had no right to participate in the distribution of the estate. It appears to us that the proper remedy in case the order failed or refused to erect the monument was for some interested party to have the same erected, and then have the party who erected the same to sue upon the account, or, if the cost of the erection had been paid, then an action for money paid might be maintained.

We recommend that the former opinion rendered herein affirming the judgment be modified by reversing that part of the judgment in favor of the defendant in error for the $100 monument fee, and that the judgment, so modified, be affirmed.

By the Court: It is so ordered.