The Prætorians v. Strickland, 10942.
| Decision Date | 27 February 1932 |
| Docket Number | No. 10942.,10942. |
| Citation | 48 S.W.2d 690 |
| Parties | THE PRÆTORIANS v. STRICKLAND.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Royall R. Watkins, Judge.
Action by Mrs. Linnie L. Strickland against The Praetorians. From a judgment for plaintiff, defendant appeals.
Affirmed.
T. W. Davidson and J. W. Randall, both of Dallas, for appellant.
Will C. Thompson, of Dallas, for appellee.
In a suit in a district court of Dallas county, appellee, Mrs. Linnie L. Strickland, as beneficiary in a certificate of insurance issued to her husband by appellant, the Prætorians, recovered judgment in the principal sum of $5,000, with interest from May 10, 1929, at the rate of 6 per cent. per annum; the judgment amounting to the sum of $5,408 on October 2, 1930, the date of its rendition. Appellant has duly perfected an appeal to this court, and the material facts are:
W. B. Strickland, on April 1, 1929, duly made application to appellant for membership in the Prætorians' council, and for the issuance of a benefit certificate not exceeding $5,000 in class S and named appellee, his wife, as the beneficiary. This application was on a blank form furnished by appellant for such purpose, and was prepared by B. T. Price, appellant's solicitor. All of the requirements to secure the acceptance of the application were complied with, and the certificate of insurance was duly prepared by appellant on April 5, 1929. This insurance certificate was delivered by appellant to Price, for delivery to the insured, and on or about April 20, 1929, Price delivered same to Strickland in the office of C. W. Tibbs, who was present at the time of the delivery.
The undisputed evidence shows that, at the time of the delivery of this policy, Price and Strickland went over its terms, and that Strickland signified his acceptance of same, but did not make in money the initial payment of $17. The application signed by Strickland, and the constitution and by-laws of appellant, required a payment of the first premium before delivery of the policy and before the certificate of insurance would become effective; the evidence as to what was said by the agent, at the time the certificate of insurance was permitted to be taken by Strickland, is in dispute, the evidence of Price being to the effect that he informed Strickland after the policy had been read that, before he could deliver it to him, he would have to receive the initial payment in money, and that the certificate could not become effective without such payment; that, on Strickland's insistence that he be permitted to take the policy home to show to appellee, he reluctantly consented, and permitted Strickland to take the policy with him for such purpose, with his promise to return it, and to make the initial payment in money by the 1st of the next month. Tibbs' testimony was to the effect that, after the reading of the policy and Strickland had signified his acceptance of same, he (Strickland) told Price that he had some money coming in about the 1st of the next month, and would mail him a check for the initial premium, and that Price said "all right," and that there was nothing said about his taking the policy only for the purpose of showing it to his wife, nor that it would not become effective at that time. This disputed issue of fact was submitted to the jury and found in favor of appellee.
The evidence warrants the conclusion that, under the course of business adopted and pursued by appellant, with reference to those solicitors who went out of its main office in Dallas, as Price did, the solicitor who was instrumental in securing the application received from appellant the certificate of insurance, and was charged with the duty of delivering same to, and of receiving payment of the initial premium from, the applicant, that the soliciting agent who secured applications was required to make remittance of the initial payment by the 20th day of the succeeding month, and that no charge would be made against such agent for the initial premium of a certificate issued on the preceding month, until the 20th of the following month. Applying this rule to the instant case, it would have been the duty of Price to pay to the Supreme Council the sum of $17 on the 20th day of May, 1929, the succeeding month after the issuance of the policy, and on such date a charge would have been entered against Price for the $17. What is termed a blue card was prepared in the name of Strickland as the insured, no charge was entered thereon against Price, and no credit entered in favor of the insured. On the morning of the 6th of May, 1929, Strickland died without having made the initial payment of $17 he had promised to make by the 1st of May, nor had Price either demanded such payment or requested a return of the policy. The application for benefit membership executed by the deceased contained this clause: "Said Order shall not be liable hereunder until a certificate shall have been delivered to me, while in good health, upon which all dues or fees have been paid by me, or until I shall have been accepted as, and have become a member of said Order by compliance with all provisions of its constitution."
Under the head of "Other General Provisions," the certificate of insurance contains the following paragraph:
The constitution contains the following paragraphs:
There was introduced in evidence a piece of literature, circulated by appellant under the indorsement of its officers and board of directors. In this literature there appears in capital letters the "payments monthly, quarterly, semi-annually or annually." Also in capital letters, "all certificates in full force from date of delivery." Then, in ordinary type, "policy pays full amount in case of death any time after delivery." This literature does not contradict any clause in appellant's constitution or by-laws.
It is the contention of appellee that, when the policy was delivered to deceased, about April 20, 1929, by the person authorized to deliver same, on the promise of deceased to make the initial payment of $17 by May 1, 1929, there was a waiver of the discharge of this obligation in money at the time of delivery, and that the certificate became effective and binding on the date of this delivery; that through its manner of doing business appellant had impliedly authorized its solicitor, Price, to allow the payment to be made in this way. This contention is supported by proper pleadings on the part of appellee. On the other hand, appellant contends that, as, under its constitution and by-laws, the terms of the application and the certificate of insurance, the contract of insurance could not become effective until the initial payment had been made in money, there could be no delivery of the policy in the sense of creating a binding obligation on appellant, until such payment had been made; that the constitution and by-laws, made a part of the...
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