App. 626; Sherry v. Women's Catholic Order of Foresters (1911) 166 III. App. 254; Kresin v. Brotherhood of American Yeomen (Ill.) and Tuite v. Supreme Forest, W. C. (Mo.) supra. For instance, in Sowersby v. Royal League (1911) 159 Ill. App. 626, supra, the court said: "We are of the opinion that the court below rightly sustained the plea of ultra vires, and that the league had no power to admit Sowersby to membership after he had passed the age of fifty-one years, and, accordingly, that the benefit certificate issued and sued upon is absolutely void. If we are right in holding that the corporation was without power to admit him to membership under the circumstances, it follows that the corporation could not, by accepting payments of assessments from him or otherwise, waive the age limit, nor be estopped to insist upon it as a defense."

II. Constitutional restrictions.

It has been held that a provision in the constitution of a mutual benefit society that persons engaged in certain particular occupations are not eligible to membership cannot be waived by the society. Thus, in Krecek v. Supreme Lodge, F. U. (1914) 95 Neb. 428, 145 N. W. 859, in holding that mutual benefit society could not waive a restriction in its constitution against admitting as members persons who were saloon keepers or bartenders, the court said: "In the case we are considering, Krecek could not, under the constitution of the society, become a member of the order. The membership of this society having determined as a mutual organization, and so declared in the constitution of the society, that saloon keepers and bartenders are ineligible to membership, on any terms, the power to admit them to membership or to ratify their membership when illegally admitted did not exist in either the supreme officers of the society or in any local lodge thereof. It follows therefore that the local lodge could not admit the decedent to membership, nor could the supreme officers of the society ratify its act in so doing, nor could they

continue him in membership; for the reason that any attempt to do so was prohibited by the constitution, over which they had no control, and not by any mere by-law which they had enacted. When the constitution of one of these societies provides in unmistakable terms that a person engaged in a certain business cannot become a member of the society, and that if, after becoming a member, he enters upon such prohibited occupation, the doing so 'shall ipso facto forfeit all rights as a member of this order,' and that his certificate shall thereby become absolutely null and void without any action on the part of his local or supreme lodge, and that the payment by him of any dues and assessments thereafter shall not have the effect of waiving such forfeiture or reinstating such certificate holder to any rights, benefits, or privileges as a member, the society cannot be made liable by estoppel or waiver, for the reason that he could not be admitted to membership or permitted to remain a member by the most solemn affirmative action on the part of either the supreme officers or the local lodge of the society." And a similar conclusion was reached in Grand Lodge, A. O. U. W. v. Bunkers (1902) 23 Ohio C. C. 487.

And where the constitution of a benevolent association provides that its members shall be limited to employees of a certain company, it has been held that the association cannot waive the restrictions. Fitzgerald v. Burden Benev. Asso. (1893) 69 Hun, 532, 23 N. Y. Supp. 647.

Likewise, it has been held that a mutual benefit association cannot waive a provision of its constitution restricting the membership to persons within specified ages. Pirrung v. Supreme Council, C. M. B. A. (1905) 104 App. Div. 571, 93 N. Y. Supp. 575 (compare Itzkowitz v. Grand Lodge, I. W. S. O. (1916) 161 N. Y. Supp. 837, as set out infra). And see Dinan v. Supreme Council, C. M. B. A. (1906) 213 Pa. 489, 62 Atl. 1067. And that an applicant who was cognizant of a constitutional age restriction cannot insist on the principle of waiver of the restriction by the society, see

Robinson v. Brotherhood of Locomotive Firemen & Engineers (1916) 170 N. C. 545, 87 S. E. 537.

But in Itzkowitz v. Grand Lodge, I. W. S. O. (1916) 161 N. Y. Supp. 837, the court apparently was of the opinion that a mutual benefit society could waive an age restriction contained in its constitution, but the correctness of this conclusion, in view of earlier decisions in New York and their apparent adherence to the general rules in similar cases, seems somewhat doubtful. And see Home Circle Soc. v. Shelton (1904) Civ. App. infra, III.

Tex. 81 S. W. 84, as set out

III. By-laws.

It has been held that a mutual benefit society cannot waive a provision of its by-laws which follows a general statutory requirement that certificates issued to members joining such societies after they have reached a specified age shall be void. UNITED ORDER, G. S. v. MEEKINS (reported herewith) ante, 89. In reaching the conclusion that a mutual benefit society cannot avoid statutory requirements by waiver, the court overrules the contention that a corporation cannot avail itself of the defense of ultra vires when the contract has been performed in good faith by the other party, and the corporation has had the full benefit of such performance, on the ground that such rule is not applicable in cases where contracts of private corporations are void because contrary to statute. However, the court added that if the prohibition contained in the rules of the order was all that was in the case, the principle contended for might be available.

And a fraternal beneficiary society. cannot, by means of a by-law, waive the provisions of a statute under which it was organized restricting benefits to persons physically disabled who are not under seventy years of age. Haner v. Grand Lodge, A. O. U. W. (1918) 102 Neb. 563, 168 N. W. 189.

But the general rule is that a bylaw of a mutual benefit society re

stricting the age limits of members may be waived provided there is no statutory or charter restrictions on the powers of the society in regard to the age of members. HOME MUT. BEN. Asso. V. ROWLAND (reported herewith) ante, 86; Beggs v. Supreme Council, C. K. L. A. (1909) 146 Ill. App. 168; Sherry v. Women's Catholic Order of Foresters (1911) 166 III. App. 254; Krause v. Modern Woodmen (1907) 133 Iowa, 199, 110 N. W. 452; Morrison v. Wisconsin Odd Fellows Mut. L. Ins. Co. (1884) 59 Wis. 162, 18 N. W. 13. And see Gray v. National Ben. Asso. (1887) 111 Ind. 531, 11 N. E. 477, and Haner v. Grand Lodge, A. O. U. W. (Neb.) supra. And it has been held that a provision of a by-law of a mutual benefit society excluding from membership persons engaged in the liquor business may be waived by the society, provided the restriction is not a part of the organic law of the society. Gilmore v. Modern Protective Asso. (1912) 171 Ill. App.

And notwithstanding a constitutional provision against admission to membership in mutual benefit societies of persons engaged in prohibited occupations, it has been held that such restrictions may be waived where the constitution also provides that the officers of a society may grant such dispensations to initiate applicants for membership as may be required and are authorized by the constitution and laws, "and to grant such other dispensations as he may deem to be in the interest of the order." Sweeney v. Independent Order of Foresters (1919) 179 N. Y. Supp. 94, affirmed in (1920) 190 App. Div. 787, 181 N. Y. Supp. 4.

And where the charter or organic law of a mutual benefit society authorizes it to fix the age limits of its beneficial members and it does so by a by-law, or "constitutional provision" which has no effect other than that of a by-law, the restrictions so selfimposed by it may be waived. Wood v. Supreme Ruling, F. M. C. (1904) 212 III. 532, 72 N. E. 783, reversing (1904) 114 Ill. App. 431.

And it has been held that where the by-law limits the eligible age to a

certain age and a statute gives the society the right to receive members of a greater age, the society may waive its by-law as to one over the age specified therein and under the statutory limit. Gurley v. Massac County Mut. Relief Asso. (1914) 186 Ill. App. 492; Kresin v. Brotherhood of American Yeomen (1920) 217 Ill. App. 448; Krause v. Modern Woodmen (1907) 133 Iowa, 199, 110 N. W. 452; Wiberg v. Minnesota Scandinavian Relief Asso. (1898) 73 Minn. 297, 76 N. W. 37.

And in a number of cases where no mention was made of any statutory or charter provisions, or as to the effect which such provisions would have if existing, mutual benefit societies have been held to have waived any right to raise the point that a member was over the age limit prescribed by its by-laws for participation in its benefit funds. Supreme Lodge, K. H. v. Davis (1899) 26 Colo. 252, 58 Pac. 595; Edmonds v. Modern Woodmen (1907) 125 Mo. App. 214, 102 S. W. 601 (compare Daffron v. Modern Woodmen (1915) 190 Mo. App. 303, 176 S. W. 498, as set out infra); Olery v. Brown (1875) 51 How. Pr. (N. Y.) 92.

And it has been held that mutual benefit societies may waive restriction in their by-laws excluding persons engaged in certain businesses or vocations from membership. Thus, it has been held that provisions of by-laws that persons engaged in dispensing intoxicating liquors are not eligible. to membership may be waived. High Court, I. O. F. (1898) 171 Ill. 325, 49 N. E. 506; Coverdale v. Royal Arcanum (1901) 193 Ill. 91, 61 N. E. 915, on subsequent appeal in (1902) 199 Ill. 649, 65 N. E. 345; Downs Knights of Columbus (1911) 76 N. H. 165, 80 Atl. 227.

V.

Likewise, it has been held that a mutual benefit society may waive the provisions of a by-law excluding from membership those engaged in hazardous occupations. O'Brien v. Catholic Order of Foresters (1912) 172 Ill. App. 638.

But there is authority to the effect that a mutual benefit society cannot

waive a by-law relating to the substance of the contract between an individual member and his associates such as one dealing with the eligibility of members. Thus in McCoy v. Roman Catholic Mut. Ins. Co. (1890) 152 Mass. 272, 25 N. E. 289, it was expressly held that a mutual benefit association could not waive the provisions of a by-law that only male Roman Catholics between the ages of twenty and fifty-one years are eligible to membership. The court argued that such by-law related to the substance of the contract between the individual member and his associates in their corporate capacity and that such by-laws cannot be waived. And

in Elliott v. Knights of Modern Maccabees (1907) 46 Wash. 320, 13 L.R.A. (N.S.) 856, 89 Pac. 929, it was again held that the by-laws of a fraternal beneficial society expressly prohibiting the admission of members over a certain age cannot be waived, the court having quoted the McCoy Case at some length. And the Massachusetts rule was approved and adopted as a general proposition in Daffron v. Modern Woodmen (1915) 190 Mo. App. 303, 176 S. W. 498, but the court also held that there could be a waiver of a by-law dealing with eligibility, as, for instance, where the officers made it a practice to take in applicants in violation of the by-laws and notoriously continued the practice for such a length of time that the governing body and the membership would be charged with notice thereof, and had failed to act with respect thereto, but added that this would be, not because the officers had made a rule, but on the theory that the membership had by acquiescence and nonaction with knowledge made or changed the rule with respect to age. In Home Circle Soc. v. Shelton (1904) Tex. Civ. App., 81 S. W. 84, it was held that a benefit society could waive a provision of its constitution and by-laws requiring applicants for membership to be in good health.

That possible objections to one's admission as a member of a friendly society, based on lack of qualifi

Messrs. Embry, Johnson, & Tolbert, for plaintiffs in error:

The death of the insured was not the result of "purely accidental means" as specified in the policy.

14 R. C. L. 1238; United States Mut. Acci. Asso. v. Barry, 131 U. S. 111, 33 L. ed. 65, 9 Sup. Ct. Rep. 755; Continental Casualty Co. v. Clark, - Okla.

—, L.R.A.1918F, 1007, 173 Pac. 453; Stasmos v. State Industrial Commission, 80 Okla. 221, 15 A.L.R. 576, 195 Pac. 762; General Acci. F. & L. Assur. Corp. v. Hymes, 77 Okla. 20, 8 A.L.R. 318, 185 Pac. 1085; State L. Ins Co. v. Allison, 14 A.L.R. 412, 269 Fed. 93; Martin v. People's Mut. L. Ins. Co. 145 Ark. 43, 11 A.L.R. 1111, 223 S. W. 389; Meister v. General Acci. Corp. 92 Or. 96, 4 A.L.R. 718, 179 Pac. 913; Taliaferro V. Travelers' Protective Asso. 25 C. C. A. 494, 49 U. S. App. 275, 80 Fed. 368; Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 So. 852; Price v. Occidental L. Ins. Co. 169 Cal. 800, 147 Pac. 1175; Postler v. Travelers' Ins. Co. 173 Cal. 1, 158 Pac. 1022; Gaines v. Fidelity & C. Co. 111 App. Div. 386, 97 N. Y. Supp. 836, affirmed on other grounds in 188 N. Y. 411, 81 N. E. 169, 11 Ann. Cas. 71; Clay v. State Ins. Co. 174 N. C. 642, L.R.A.1918B, 508, 94 S. E. 289; Employers' Indemnity Corp. v. Grant, 20 A.L.R. 1118, 271 Fed. 136; Elsey v. Fidelity & C. Co. 187 Ind. 447, L.R.A. 1918F, 646, 120 N. E. 43.

The words "purely accidental means" must be given a popular construction, such as the average man would give them.

Lewis v. Ocean Acci. & Guarantee Corp. 224 N. Y. 18, 7 A.L.R. 1129, 120 N. E. 57; Midland Casualty Co. v. Mason, 55 Okla. 93, 154 Pac. 1172; New Amsterdam Casualty Co. v. State Industrial Commission, 80 Okla. 7, 193 Pac. 974; Kingkade v. Continental Casualty Co. 35 Okla. 99, 128 Pac. 683. Mr. S. B. Garrett for defendant in error.

Thompson, C., filed the following opinion:

This was an action by the defendant in error, the beneficiary named in a policy issued February 7, 1917, whereby the plaintiff in error the Oklahoma National Life Insurance Company insured the life of Omar Churchwell in the sum of $1,000, and the plaintiff in error Great Southern Life Insurance Company

reinsured and underwrote the policy under the laws of the state of Texas and the state of Oklahoma, on the 31st day of July, 1918. Under the policy the plaintiffs in error obligated themselves by the following provision contained in the policy: "Upon receipt of due proof of the death of the insured resulting directly, independently, and exclusively of any and all other causes from bodily injuries effected solely through external, violent, and purely accidental means (homicide or self-destruction, sane or insane, not included), and occurring within twenty days after such injuries, the amount payable upon surrender for cancelation and in full satisfaction of this policy shall be $2,000."

The death of the insured having occurred, the insurer, after receipt by it of the prescribed notice of the death, offered to pay $1,000, which the beneficiary was willing to accept without prejudice to her claim, asserted in this action, of the right to recover an additional $1,000 under the above-quoted "double indemnity" provision of the policy.

The claim asserted in the petition was duly resisted by the plaintiffs in error, and by agreement of parties the cause was tried to the court without the intervention of a jury, upon an agreed statement of facts and contentions of the parties, which I was signed by the attorneys for the respective parties and submitted to the court for its decision, as follows:

"Agreed Statement of Facts.

"It is stipulated and agreed by and between the plaintiff, L. B. Churchwell, and the defendants, the Oklahoma National Life Insurance Company and Great Southern Life Insurance Company, that the facts proven and established in this case and admitted by all parties to be proved and established are as follows:

"(1) On the 7th day of February, 1917, Omar Churchwell was insurable age and in health, and that on said date the defendant the Okla