Hand v. Sovereign Camp, Woodmen of the World

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: Hand v. Sovereign Camp, Woodmen of the World, 214 S.W. 718 (Tex. App. 1919)
• Decision Date: 29 May 1919
• Docket Number: (No. 7732.)
• Parties: HAND v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, et al.

Page 718

214 S.W. 718

HAND v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, et al.

(No. 7732.)

Court of Civil Appeals of Texas. Galveston.

May 29, 1919.

Rehearing Denied June 26, 1919.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by David Hand against the Sovereign Camp, Woodmen of the World, and others. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Charles Murphy, of Houston, for appellant. Ewing Boyd, of Houston, for appellees.

PLEASANTS, C. J.

This suit was brought by the appellant against the appellee, Sovereign Camp, Woodmen of the World, to recover upon an alleged insurance policy for the sum of $1,000, issued by the defendant upon the life of John Malloy for the benefit of appellant.

The allegations of plaintiff's petition are as follows:

"That plaintiff is a resident of Harris county, Tex.; defendant is a life insurance corporation duly and legally incorporated under the laws of the state of Nebraska, and has a permit and is duly licensed to and is transacting business in the state of Texas. That on or about the 16th day of January, 1904, the defendant, in consideration of the payment by John Malloy to it of the sum of ____ dollars, and the additional sum of ____ dollars to be paid to it each subsequent month during his natural life, executed and delivered to the said John Malloy its policy of insurance in writing, whereby it insured the life of the said John Malloy in the sum of $1,000, for the benefit of Catherine Malloy, wife of the said John Malloy, and on or about ____, 1916. The said Catherine Malloy, wife of the said John Malloy, departed this life, and on or about November 24, 1916, for the consideration above mentioned, the defendant did issue, execute, and deliver to the said John Malloy another policy of insurance in writing, whereby it insured the life of said John Malloy in the sum of $1,000 for the benefit of plaintiff, and the defendant thereby promised to pay and became liable and bound to pay the sum of $1,000 to plaintiff upon the death of the said John Malloy; all of which is more fully shown by the policy, the original of which is now in the possession of the defendant. That John Malloy departed this life on the ___ day of September, 1917, and up to the time of his death all premiums and assessments and dues accrued and due upon and under the terms of said policy were duly and fully paid, and the said John Malloy in all respects complied with the conditions and provisions of said policy. That within a reasonable time after the death of the said John Malloy, to wit, on or about the ___ day of September, 1917, plaintiff gave to the defendant due and proper notice and proof of the death of the said John Malloy, as aforesaid, and the plaintiff duly demanded from the defendant payment of the said sum of $1,000, the amount of the policy; but the defendant failed and refused, and so continues to fail and refuse, to pay the same or any part thereof, and thereby the defendant became liable to the plaintiff in the full sum of $1,000, together with 12 per cent. penalty, interest, and $100 as reasonable attorney's fees."

The prayer of the petition is for the recovery of $1,000, with a penalty of 12 per cent., together with interest, reasonable attorney's fee, and all costs of suit.

The defendant answered, admitting the execution and delivery of the policy and its liability thereon in the sum of $971.50, but averred, in substance, that it could not safely pay the amount to plaintiff because under its constitution and by-laws in force at the time the policy was issued, and which were expressly made a part of the policy, the amount of insurance named in the policy could only be paid to a blood relative of the deceased; that the policy recites that the plaintiff, who is named therein as beneficiary, bears the relationship of nephew to the deceased; but that upon the death of said John Malloy, Charles P. Malloy and Margaret Anfield, claiming to be the brother and sister and sole heirs at law of John Malloy, notified this defendant that the plaintiff was not a nephew or blood relative of the deceased, John Malloy, and that they, the said brother and sister, claimed and were entitled to receive the proceeds of the policy. It then averred that it was ready and willing to pay the amount to whoever was justly entitled to receive it, and asked that the said Charles Malloy and Margaret Anfield be made parties defendant, and that it be permitted to pay into the registry of the court the said sum of $971.50, less $50, which it prayed be allowed it as attorney's fee for preparing and filing its answer.

Charles Malloy and Margaret Anfield, having been made defendants, answered plaintiff's petition by general demurrer and general denial and by special pleas, in which they aver that they are the brother and sister, respectively, of John Malloy and his sole heirs at law; that the plaintiff is not a nephew nor a blood relative of the deceased, John Malloy, and under the provisions of the constitution and by-laws of the insurance society is not entitled to receive the benefits of the policy, but these defendants are, under the provisions of said constitution and by-laws, which were made a part of the contract of insurance, entitled to receive same. They pray for judgment for the sum of $971.50 against the plaintiff and the defendant, Sovereign Camp, Woodmen of the World.

By agreement with the other parties the defendant Sovereign Camp, Woodmen of the World, paid into the registry of the court $921.50 and was released from all further liability on said policy, and an order was made and entered by the court in accordance with said agreement.

In addition to the pleadings, the substance of which we have before stated, the defendants Charles Malloy and Margaret Anfield filed the following exception to plaintiff's petition:

"They specially except to the allegations in paragraph 1 of the plaintiff's petition for the reason that the same do not disclose whether the defendant Sovereign Camp, W. O. W., is an ordinary life insurance company or fraternal beneficiary insurance association or society, nor whether said policy is an ordinary...