Grand Lodge A. O. U. W. v. Bollman

• Decision Date: 22 November 1899
• Citation: 53 S.W. 829
• Parties: GRAND LODGE A. O. U. W. OF TEXAS v. BOLLMAN et al.
• Court: Texas Court of Appeals

53 S.W. 829

GRAND LODGE A. O. U. W. OF TEXAS v. BOLLMAN et al.

Court of Civil Appeals of Texas.

November 22, 1899.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by Emma H. Bollman and others against the Grand Lodge of the Ancient Order of United Workmen of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

Robson & Duncan, for appellant. Hogg & Robertson, for appellees.

KEY, J.

In 1883, John Fleming became a member of Texas Lodge, No. 45, of the Ancient Order of United Workmen, and was entitled to receive, and did receive, a benefit certificate issued by appellant for $2,000, to be paid on his death to his wife, Hannah E. Fleming. By the laws of the order, the $2,000 referred to was no part of Fleming's estate, though he had the right at any time to designate the person to whom the same should be paid, provided the person designated was a member of his family, or related to him by blood or dependent upon him. In 1888, Hannah E. Fleming died, and on the 15th day of July, 1889, John Fleming made a will, in conformity with the laws of this state, which will was duly probated by the county court of Travis county on the 15th day of January, 1894, and by the terms of which he directed that the $2,000 covered by said benefit certificate should be paid to Emma H. Sigmund, now the plaintiff, Emma H. Bollman, Augusta Sigmund, now the plaintiff, Augusta Dorris, Annie Sigmund, the other plaintiff, and Minnie Sigmund, who is now dead. John Fleming died October 23, 1893, and appellees brought this suit to recover the $2,000 specified in the benefit certificate referred to. A judgment was rendered for them, and the defendant has appealed.

At the trial it was agreed that the plaintiffs were not members of John Fleming's family, and were not his blood relatives; the plaintiffs resting their right to recover upon the proposition that they were dependents upon said Fleming, and being such, and having been designated by him as the beneficiaries to receive the $2,000 upon his death, they were entitled to maintain an action therefor. Whether or not they were such dependents was submitted by the court to the jury, and the latter returned a special verdict, finding that the plaintiffs were dependents upon John Fleming at the time he designated them as the beneficiaries in the certificate sued on and at the time of his death.

This finding is assailed as follows in appellant's motion for a new trial in the court below, and, in substance, in its first assignment of error in this court: "Because the verdict of the jury, in finding that the plaintiffs were dependents upon the deceased, John Fleming, at the time that they were designated as beneficiaries by the will of said Fleming, and at the date of the said Fleming's death, is contrary to the undisputed evidence in this cause, in this: (a) That all the evidence, when considered together, shows that when Fleming was furnishing the goods, groceries, etc., to the Sigmund family, from 1881 to 1889, in September, was in lieu of the payment of board and other attentions furnished and shown him by said family, and that such things were in compensation for such board and attentions. (b) The undisputed evidence shows that the money which the members of said Sigmund family wrote to said Fleming for, after he had left Texas and gone to Washington, was not for the purpose of supporting any member of said family, or of said family as a whole, or of any one or all of said plaintiffs, but was for the purpose of paying and discharging a debt incurred by said family, incident to the sickness and death of the sister and mother of the plaintiffs, and was never intended or used for the purpose of support or maintenance of the said family or any member thereof, or of all or either one of said plaintiffs. (c) That all the other moneys and gifts, as shown by the evidence as given by said Fleming to any of the members of said family, were but occasional gifts, and in no way intended by him as contributions towards the support and maintenance of said plaintiffs, is conclusively shown by the undisputed evidence in this cause. (d) The undisputed evidence in this cause shows that there existed no legal, moral, or equitable obligation resting upon the said Fleming at any time, and especially after he left Texas, in September, 1889, to support and maintain, in any degree whatever, any member of the said Sigmund family, or all of them, or either or all of the plaintiffs, and that his gifts of money and other things were but expressions of gratitude for past favors and benefits bestowed upon him by the various members of said family, and that such obligation, if any is shown, was one which he could have cut off at pleasure."

Without stating the testimony in detail, its substance may be summarized as follows: In 1881, Joseph Sigmund, a mason by trade, and his family, resided in the city of Austin, where he still resides. In addition to his homestead, he owned, and still owns, another building, which he rents for a boarding house, deriving therefrom about $35 per month. In the year stated, John Fleming occupied a room in the neighborhood of the Sigmund residence. He became ill, and the Sigmund family, actuated by feelings of pity and sympathy, became interested in him, and ministered to his wants. Some time during this year he began taking part of his meals and spending a good deal of his time with the Sigmunds. This intimacy gradually increased, until Fleming became almost as one of the Sigmund family. He slept in a house near their residence, and took his meals and spent his unemployed time with them. He was also sick at other times, and during these times (except on one occasion, when he had the typhoid fever, and was cared for by the members of his church) he was nursed and cared for by Mrs. Sigmund and the other members of the family. When he was not sick, he was generally engaged in some character of work. He does not appear to have owned property of any considerable value, and worked by the day and month. He lived with the Sigmunds, as above stated, and this continued, from 1881 until November, 1889, during which time he frequently furnished the Sigmund family with groceries and other provisions, ordinarily used for the support of a family, and made the Sigmund girls, now plaintiffs in this suit, many presents of clothing, such as dresses, shoes, etc. During these years, the Sigmunds made no charge against him for board, and the testimony indicates that the provisions, clothing, etc., supplied by him for the use of the family, were more than sufficient to pay for his board. It also appears that the Sigmunds became very much attached to Fleming, and he was very much attached to them, especially to the plaintiffs. In November, 1889, Fleming left this state, and went to Seattle, in the state of Washington, where he remained up to the time of his death, in October, 1893. At the time he left he told the Sigmund family, if at any time they needed anything, to let him know, and he would assist them; and thereafter he sent them money, at various times, the exact amount of which is not disclosed by the testimony, but it is estimated by Mrs. Bollman at about $300. Minnie Sigmund died in 1890, and, upon receiving notice of her death, Fleming sent the family $50; and, upon receiving a letter from them stating that it would require another $50 to meet all the expense of her last sickness, he sent another $50. In 1891, Mrs. Sigmund died, and, upon being apprised of the fact, Fleming sent the family $75, which was used in paying the expense of her last sickness. He sent other and smaller amounts before and after that time, but the number of these remittances and the total amounts the witnesses were unable to give. At the time of Fleming's death, he owed Joseph Sigmund $35, which the latter had advanced to pay Fleming's lodge dues.

It was not affirmatively shown that the plaintiffs, at the time they were designated as beneficiaries, and at the time of Fleming's death, owned no property of...