Grand Lodge Free and Accepted Masons v. Walker

• Decision Date: 06 November 1937
• Docket Number: No. 12268.,12268.
• Parties: GRAND LODGE FREE AND ACCEPTED MASONS OF TEXAS v. WALKER.
• Court: Texas Court of Appeals

Page 945

110 S.W.2d 945

GRAND LODGE FREE AND ACCEPTED MASONS OF TEXAS v. WALKER.

No. 12268.

Court of Civil Appeals of Texas. Dallas.

November 6, 1937.

Appeal from Grayson County Court, Jake J. Loy, Judge.

Action by Lizzie Walker against Grand Lodge Free and Accepted Masons of Texas. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hamp P. Abney and Lewis E. Bartlett, both of Sherman, for appellant.

W. J. Durham, of Sherman, for appellee.

LOONEY, Justice.

Grand Lodge Free and Accepted Masons of Texas, a corporation, appellant herein, is a fraternal benefit society, organized under and governed by the provisions of chapter 8, title 78, of the Statutes (article 4820 et seq., as amended [Vernon's Ann. Civ.St. art. 4820 et seq.]); maintains a grand and subordinate lodges, one of which is at Denison, Tex., known as Solomon Lodge No. 94. Richard Walker, at the time of his death (January 19, 1932), was a member of said lodge and had been for 35 years prior thereto. After his death, and in due time, Lizzie Walker, surviving wife of Richard, appellee herein, demanded of appellant payment of the share of the relief money collected from all members of subordinate lodges of the society during the Masonic year in which Richard died, to which she was entitled as beneficiary, and instituted this suit when payment was refused.

This is a second appeal by appellant from an adverse judgment; on the first appeal, the case was transferred to the Court of Civil Appeals at Eastland, and by that court was reversed and remanded, because appellee's petition failed to properly allege a cause of action, in that the contractual obligations sought to be enforced were not sufficiently set out in the pleading. See report of case 86 S.W. 2d 839.

On return of the record, appellee filed her second amended original petition, on which the case was tried, resulting in judgment in her favor for the amount of relief prayed for, with 12 per cent. damages and reasonable attorney's fees, from which this appeal was taken.

In its first assignment, appellant contends that the court erred in not sustaining its general demurrer. The transcript fails to show any action by the court on the demurrer, but, as the petition must be found sufficient to sustain the judgment, we have treated the assignment as a suggestion of fundamental error.

Having alleged the provisions of appellant's constitution relied upon for recovery, the petition, in our opinion, was good against the general demurrer. Southern Travelers' Ass'n v. Levy (Tex.Civ. App.) 13 S.W.2d 460, 461, presented a similar question with regard to which the Texarkana court, through Judge Levy, said: "The appellant insists that the demurrer to the petition should have been sustained because the contract upon which the suit was based consisted of the articles of incorporation, the by-laws of the association, the application for membership and the certificate of membership, and the plaintiff did not plead the substance or tenor of any of these, except the certificate of membership. It is believed that a cause of action was shown in the petition. If the whole of the contract was not in point of fact set forth in the petition, the failure to do so may have been reached by objection to the evidence when offered." The record here discloses that the constitution and by-laws of the society, in their entirety, were introduced in evidence without objection, and it was not denied that appellant was organized under the provisions of the statute relating to fraternal benefit associations. We therefore overrule this assignment.

In its second assignment, appellant complains of the action of the court in not sustaining the plea of 2-year limitation. This assignment is predicated upon the idea that the cause of action, alleged in the second amended original petition upon which the case was tried, set up a new and different cause of action, more than 2 years after its accrual. This assignment is overruled. We think the cause of action alleged throughout was the same, although at first the petition was defective — in that the provisions of the constitution of the association relied upon for recovery were not sufficiently alleged. In Leifeste v. Stokes (Tex.Civ.App.) 45 S.W.2d 1006, 1007, Chief Justice McClendon said: "The filing of the suit tolls the statute of limitations as to every cause of action asserted in the original petition. And this is true, no matter how imperfectly the cause of action is alleged, and even when the allegations are so defective that the petition is bad upon general demurrer. Scoby v. Sweatt, 28 Tex. 713; Killebrew v. Stockdale, 51 Tex. 529; Southern Surety Co. v. Sealy Ind. S. Dist. (Tex.Civ.App.) 10 S.W.2d 786 (error refused)." To the same effect see Mann v. Mitchell (Tex.Civ.App.) 241 S.W. 715, 717, and Koenig v. Marti (Tex.Civ.App.) 103 S.W.2d 1023.

Appellant's third and fourth assignments, in effect, present the same question—that is, the third complains of the refusal of the court to direct a verdict in its favor, and the fourth complains of the action of the court in overruling objections to the charge, both assignments being based upon the contention that appellee failed to prove a case, in that the evidence showed that, at the time of his death, Richard Walker stood suspended for failure to pay relief dues, and had been dropped from appellant's membership roll prior to his death.

These assignments require a short review of the material facts. That Richard Walker was in good standing on December 10, 1932, and for 35 years prior thereto had consistently maintained membership in said society, we think is abundantly and satisfactorily, shown by evidence. So, the inquiry narrows to whether or not he paid, or became delinquent and was suspended for failure to pay, the second annual installment of $7 Grand Lodge relief dues for the Masonic year beginning May 15, 1932, and ending May 14, 1933. His death occurring January 19, 1933, appellee notified the officers of the subordinate lodge, of which deceased was a member, of his death, gave deceased a decent burial, and thereafter demanded payment of the share of the relief fund to which she was entitled, which being refused, suit was instituted.

There is no controversy in regard to the amount of appellee's share of the relief fund, if she is entitled to recover, as appellant admits in its brief that: "* * * the evidence shows that if Richard Walker, deceased, had been in good standing and he and his beneficiary had fulfilled all duties and obligations imposed upon him or them, that his beneficiary would have received the sum of Four Hundred Fourteen ($414.12) Dollars and twelve cents * * *"; the amount mentioned being appellee's share of the relief fund collected by appellant from all subordinate lodge members during the Masonic year (1932-1933), as provided in section 8 of the constitution. It is obvious, we think, that the subordinate lodge secretary was the officer to whom members were required to pay relief and lodge dues, and that it was the duty of such officer to remit same to the grand secretary, who was authorized (section 10 of the constitution) to issue to beneficiaries relief checks for the amount due, first to the wife, etc. We do not deem it necessary to summarize the evidence on the decisive issues, that is, whether or not Richard Walker paid to the secretary of the subordinate lodge the December, 1932, installment of $7, only to say that the evidence was sharply conflicting, but, in our opinion, was sufficient to authorize the finding by the jury, to the effect that the installment was paid by Walker; hence we adopt the finding as our conclusion on the issue.

Counsel for appellant argues that, the secretary of the subordinate lodge not being an agent of the Grand Lodge for the collection of relief dues, appellant would not be liable (not having received the dues), even though Walker paid same to the secretary of the subordinate lodge prior to December 10th.

We cannot adopt the view of appellant in regard to this matter. Isolated language appearing in sections of the constitution, considered to itself, doubtless, bears the construction contended for, but, when considered in the connection used and with reference to other provisions, we do not think it can be correctly said that the secretary of the subordinate lodge was not the authorized agent of the Grand Lodge to collect from the individual members relief and other Grand Lodge dues. The society being composed of a grand and subordinate lodges, necessarily, its contact and dealings with individual members is through the medium of the local lodge and its officers, in fact, the corporate entity — that is, the Grand Lodge — has no vital existence aside from local lodges. These act in a dual capacity; in regard to purely local affairs, they act independently of the Grand Lodge; but, in regard to the collection, report, and remittance of relief and other dues pertaining to the business of the Grand Lodge, necessarily, the local lodge and its officers act in a representative capacity.

While the...