Butler v. Abilene Mut. Life Ins. Ass'n

• Decision Date: 09 June 1939
• Docket Number: No. 1919.,1919.
• Citation: 130 S.W.2d 1061
• Parties: BUTLER v. ABILENE MUT. LIFE INS. ASS'N.
• Court: Texas Court of Appeals

130 S.W.2d 1061

BUTLER v. ABILENE MUT. LIFE INS. ASS'N.

No. 1919.

Court of Civil Appeals of Texas. Eastland.

June 9, 1939.

Rehearing Denied July 7, 1939.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Action on a life policy by Creola Butler against the Abilene Mutual Life Insurance Association. From a judgment for defendant, plaintiff appeals.

Affirmed.

Smith & Smith, of Anson, for appellant.

Joe E. Childers, of Abilene, and Omar T. Burleson, of Anson, for appellee.

GRISSOM, Justice.

Creola Butler sued The Abilene Mutual Life Insurance Association on an insurance certificate for $1,000, issued to her deceased husband, Jess Butler. Plaintiff alleged that on the 9th day of June, 1934, J. N. Stephens was the employee of defendant and a member of "its soliciting force" and authorized by the defendant "to solicit and write insurance for it in certain territory * * * including Jones County, Texas"; that on said date the defendant, through Stephens, secured an application from Jess Butler for a $1,000 policy of insurance "upon a stipulated level premium basis of $1.10 per month"; that Stephens collected from Jess Butler $1.10, the initial payment on said policy; "that said application was furnished to the defendant and the defendant did, on the 18th day of June, 1934, execute and deliver to the said Jess Butler" said certificate of insurance with the said Creola Butler named as the beneficiary therein. That during the month of July, 1934, "and before the 15th day of said month, the said Jess Butler paid to the defendant, through its local and soliciting agent J. N. Stephens, the July premium on said insurance policy * * * which continued said policy in full force and effect until the 15th day of August, 1934." That while said policy was in full force and effect and a binding contract between the defendant and Jess Butler, the said Jess Butler died on the 11th day of August, 1934. That within a few days thereafter the defendant was notified of the death of the said Jess Butler "through its local agent, solicitor and representative J. N. Stephens." Plaintiff further alleged that the defendant had actual notice at its home office of the death of Jess Butler within less than 60 days from the date of his death.

Plaintiff, in her original petition, alleged that the defendant was a Mutual Life Insurance Association, but, in her amended petition, alleged that defendant was "operating a life insurance association under a Permit from the Insurance Department of the State of Texas" and that "the class of the insurance association operated by the defendant is a `level' or `stipulated premium plan' whereby the defendant writes policies of life insurance in and over a certain section of territory including more than one county, covering a radius of at least 75 miles distant from its home office" etc.

The defendant answered plaintiff's said pleading by a general demurrer and general denial, and defendant specially denied that Jess Butler, or any one for him, ever paid any money to the defendant. It specially denied that plaintiff, or anyone for her, immediately notified defendant of the death of the insured, and alleged that it was not notified of his death until May 29, 1935. It specially denied that the policy of insurance sued on was in force and effect on the date of Butler's death. It alleged that it was a Local Mutual Aid Association, operating under Chapter 9A, Art. 4875a—1 et seq., R.S.1925, and amendments thereto (Vernon's Ann.Civ.St.), and that it was subject only to the laws governing such mutual associations; "that the application, certificate of insurance, constitution and by-laws constitute the contract of insurance between each and every member of the association and so constitutes the contract of insurance between Jess Butler and the defendant."

Defendant alleged that deceased signed and tendered an application to it, containing the following clause, to-wit:

"I hereby make application for membership in The Abilene Mutual Life Insurance Association of Abilene, Texas, and agree to pay monthly dues and assessments as provided in the Policy issued to me and I hereby agree to be bound by the terms of the Policy and by the Constitution and By-Laws as they now exist or may be hereafter amended.

"This application is taken subject to the approval of the proper officials of the Association. Agent's authority limited to statements in application and membership certificate."

And, that in consideration of said application, the defendant issued its certificate to Butler on June 18, 1934. That the certificate so issued, among other things, provided: "On the First of each and every calendar month of each year there shall be due on this policy a monthly premium in the amount of $1.10 which shall be paid at the Home Office of this Association on or before the 15th day of each month."

That plaintiff had notice of the monthly premium of $1.10 which was due on July 1, 1934, and payable on or before the 15th day of July, 1934, at the defendant's office. That said monthly premium was not paid and the policy lapsed, "if same had ever been in force", on July 15, 1934. That said policy contained the further provision: "All fixed premiums on this policy are due on the first day of the month and must be paid at the Home Office on or before the 15th day of the month to prevent this policy from lapsing. Should premiums not be paid on or before the specified time, this policy shall lapse."

That Jess Butler, on July 1, 1934, was given notice of an assessment of $1.10 which was due July 1, 1934, by mailing a written notice to Butler at the address given in the application, which notice, in effect, informed Butler that if the July premium were not paid on or before the 15th day of July, a health certificate would be required for reinstatement, and it instructed him "do not pay agents", and advised Butler to "pay now and don't lapse your policy. Make all payments to T. S. Rollins, Secretary, Box 933, Abilene, Texas." That said assessment was not paid. The defendant further alleged that its Constitution and By-Laws contained a provision that all claims must be filed with the Secretary in the office of the Association within one hundred days after such claim occurs; that the defendant was not notified of the death of Jess Butler within 100 days after his death, and that no notice claim, proof of death or any information regarding the death of Butler was given to defendant within 100 days after his death, for which reason, it alleged, the policy was null and void.

By trial amendment, the defendant alleged that in the application for insurance, Jess Butler was asked, among other things, whether he then had, or ever had, among other things, appendicitis, and whether or not Butler ever had "any surgical operation or advised to have any." That Butler answered said questions "No." That the answers were false. That Butler had suffered with appendicitis and had a surgical operation therefor on September 10, 1929, and had undergone three surgical operations prior to June 9, 1934; that the questions and answers were material to the risk, because of the facts stated, and further because Butler had undergone a surgical operation and suffered from adhesions thereafter, and "it was necessary for...