Cole v. Knights of Maccabees of the World

• Decision Date: 10 May 1916
• Docket Number: (No. 979.)
• Citation: 188 S.W. 699
• Parties: COLE v. KNIGHTS OF MACCABEES OF THE WORLD.
• Court: Texas Court of Appeals

188 S.W. 699

COLE v. KNIGHTS OF MACCABEES OF THE WORLD.

(No. 979.)

Court of Civil Appeals of Texas. Amarillo.

May 10, 1916.

On Motion for Rehearing, October 11, 1916.

Error from District Court, Dallas County; J. C. Roberts, Judge.

Action by Mrs. Lizzie Cole against the Knights of the Maccabees of the World. Judgment for defendant and plaintiff brings error. Affirmed.

H. W. Peck, of Dallas, for plaintiff in error. Cross & Rogers, of Waco, for defendant in error.

HALL, J.

This is an action by plaintiff in error, to recover the amount of a benefit certificate of insurance, issued by the defendant in error to Thomas Ross Cole. Plaintiff in error is the mother of Thos. Ross Cole, deceased, and the beneficiary named in the certificate.

Plaintiff in error alleges in her original petition that, in consideration of the payment of $1.15 per month, the defendant issued the certificate upon which the suit is based, whereby it insured the life of Thomas Ross Cole in the sum of $1,000, payable to plaintiff in error; that Thomas Ross Cole died in the city of Dallas, October 6, 1913, while said certificate was in full force and effect; that defendant had denied liability, waived proofs of death, and the signature of the certificate; and that neither plaintiff nor the insured had notice of the forfeiture of the certificate sued on. She tendered into court the amount of the monthly payments, per capita taxes, and additional assessments due and unpaid, and prayed for judgment for the full amount of the certificate. Defendant in error answered, alleging that the insured had failed to pay his dues and assessments, and by reason thereof the certificate was not in force at the time of his death and was null and void. The answer sets up the following provisions of the by-laws:

"Sec. 329. Effect of Suspension. A member under suspension for any cause except when suspension is for a definite period as a matter of discipline, forfeits absolutely his right to participate in the benefit funds of the association, or the fraternal privileges of his tent. Suspension for discipline shall not affect the right of a member to participate in the benefit funds of the association, but shall deprive him of all fraternal privileges for the period of his suspension.

"Sec. 330. Suspension from Association, and Tent. A life benefit member failing to pay a monthly rate per capita tax, or additional assessments within the month, on the first day of which it is due, shall stand suspended, without notice from all rights of life benefit membership and from all the privileges and benefits of his tent.

"Sec. 331. Notice of Suspension to Supreme Record Keeper. A member suspended for failure to pay a monthly rate or additional assessments, must be reported by name to the Supreme Record Keeper, by the tent record keeper in his monthly report. The record keeper shall also report the name of each member so suspended to the tent at its next regular review.

"Sec. 332. Failure to Pay Tent Dues. A member neglecting or refusing to pay his tent dues or any fine or special assessment, levied by the tent, for a period of thirty days after the same is due, shall be reported in open tent by the record keeper, provided that the record keeper shall, before making such report, notify such member to pay the amount due before the next regular review of the tent.

"Sec. 333. Suspension Declared. A member so reported shall at once be declared suspended by the commander from all rights and benefits of the association, and shall be notified by the record keeper of the action of the commander."

It is affirmatively alleged that the application provides that a failure on the part of the insured to pay any monthly rate or assessment within the time provided by the bylaws, or failure to pay the dues fixed by said law, and in the manner and at the time provided thereby, or the by-laws of the tent, shall vitiate the certificate; that sections 315 and 330 of the by-laws provide, in substance, that on failure on the part of a member to pay a monthly rate within the month on the first day upon which it fell due he should be suspended without notice from all rights, privileges, and benefits of the order.

It is further alleged that at the time of the death of Cole he was under suspension for failure to pay his monthly rate to the association due for the month of July, and that he also failed to pay his monthly dues for the month of July, August, September, and October, 1914; that section 377 of the by-laws was in full force and effect, and provided that no benefits should be paid on account of the death or disability of any member under suspension for any cause at the time of his death, unless such suspension was for a definite time, as a matter of discipline, and that the said Cole was not suspended for a definite time as a matter of discipline.

The case was tried by the court without the aid of a jury on November 17, 1914, and judgment was rendered in favor of the defendant insurance company.

Plaintiff in error's first, second, third, and fourth assignments complain of the court's action in overruling her special exceptions to the pleadings of defendant in error. These assignments are without merit, and are overruled.

The fifth and seventh assignments of error complain of the admission in evidence of the testimony of the witnesses Young and Harvey. The evidence of these witnesses was to the effect that all delinquent members were duly notified by written notice in regular form, sent to them through the post office. The introduction of this testimony was objected to on the ground that the defendant, in its pleadings, had not alleged that it had ever given the insured any notice of his suspension, nor did he plead that the insured had been suspended, in accordance with the by-laws of the association. In its first supplemental petition the allegation is made that plaintiff had no notice that dues and assessments had not been paid, and that Thos. R. Cole had been suspended and his certificate forfeited. In view of the allegations contained in the plaintiff's pleadings, it was not necessary for defendant to set up the fact of notice. Plaintiff alleges specifically the duty of the defendant to notify Thos. R. Cole, and negatives the fact that any such notice was given by the defendant, its officers or agents, to either Cole or plaintiff. It is an elementary rule of pleading that facts alleged by one party need not be alleged by the other. These assignments are overruled.

The sixth assignment is that the court erred in overruling plaintiff's objections to the testimony of Young, to the effect that Thos. R. Cole, when asked by the witness to pay his July assessment, said that he would not keep it up, or did not want to keep it up. The objection to this testimony is that such a declaration, made by the insured as to his intention of keeping up dues, was not admissible against the beneficiary. By statutory provision in this state the beneficiary in a mutual benefit life association has no vested interest in the contract of insurance until the death of the insured. Vernon's Sayles' Civil Statutes, art. 4832; Coleman v. Anderson, 98 Tex. 570, 86 S. W. 730. By the great weight of...