Hobson v. Wise County Home Protective Ass'n

• Decision Date: 07 June 1919
• Docket Number: (No. 9127.)
• Citation: 214 S.W. 583
• Parties: HOBSON v. WISE COUNTY HOME PROTECTIVE ASS'N.
• Court: Texas Court of Appeals

214 S.W. 583

HOBSON v. WISE COUNTY HOME PROTECTIVE ASS'N.

(No. 9127.)

Court of Civil Appeals of Texas. Ft. Worth.

June 7, 1919.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

Suit by Mrs. Virda Hobson against the Wise County Home Protective Association. From judgment for defendant, plaintiff appeals. Affirmed.

McMurray & Gettys, of Decatur, for appellant.

R. E. Carswell, of Decatur, for appellee.

DUNKLIN, J.

Mrs. Virda Hobson instituted this suit against the Wise County Home Protective Association No. 1, a private corporation, to recover the amount stipulated in a life insurance policy issued by the defendant upon the life of William Hobson, husband of plaintiff, and payable to her as his surviving wife at his death. From a judgment in favor of the defendant, the plaintiff has appealed.

The case was tried by the court without a jury, and the trial judge filed the following findings of fact and conclusions of law:

"Findings of Fact.

"(1) I find that the defendant is a corporation duly incorporated under the laws relating to the incorporation of mutual assessment home insurance companies, as provided for in chapter 5 of title 71, Rev. Civil Statutes, its original articles of incorporation having been duly filed on March 18, 1902, and amended articles on February 6, 1907, providing for death benefits to be raised by assessments upon its members, such benefit, in case of the death of a member in good standing, being the amount of one assessment of $1 each upon the members in good standing, but not to exceed the total sum of $1,000.

"(2) That upon organization defendant adopted a constitution, of which section 5 provides as follows:

"`The board of directors shall levy an assessment of $1 upon the death of each member, and, when there are two or more deaths of members at one time for which no assessments have been made, said board may order the secretary to issue a double assessment.'

"(3) Among other things, its by-laws provide as follows:

"`Sec. 7. The books of the association shall be kept by him [the secretary], and he shall notify all members by post card of the assessment made by the board of directors.'

"`Sec. 19. All assessments levied by the board of directors must be paid within fifteen days from the date of such levy, and any member failing to pay such levy within said fifteen days shall stand suspended and will no longer be entitled to any of the benefits of the association.'

"`Sec. 19. On the 16th day from the date of the levy of each assessment the secretary shall notify all members who have failed to pay such assessment of their suspension, and if within ten days from the date of such notice any member shall pay two dollars, one of which shall be placed in the beneficiary fund and one dollar in the excess fund, such member shall be reinstated.'

"(4) I find that deceased, W. M. Hobson, became a member of defendant association by his written application dated October 21, 1904, in which, as required thereby, he gave his post office address as Decatur, Texas, rural route No. 1, and a certificate of membership was issued to him containing the following stipulation:

"`That the assured agrees to pay assessments levied by the directors of $1 upon the death of each member, and not to exceed $1 a year for expenses, within fifteen days of the date of call; and agrees further that failure to pay any assessment so levied within fifteen days from date of call shall forfeit all claims as a member of this association.'

"The plaintiff, Virda Hobson, was named therein as beneficiary, she being the wife of deceased; and it was further stipulated that, `if the said W. M. Hobson should die in good standing in the association,' the association would pay his beneficiary one assessment of $1 per member on its membership, not to exceed the sum of $1,000.

"(5) I find that said insured paid all assessments levied from the time he became a member until February 25, 1916; that on said date a double assessment of $2, designated as assessment No. 121, was duly levied to cover loss resulting from the death of two members, of which insured was given due notice by the secretary, said notice being dated February 25, and stipulating that failure to pay said assessment on or before March 16, 1916, would cause his suspension.

"(6) I find that on the following dates respectively, to wit, April 28, 1916, May 26, 1916, July 28, 1916, and September 28, 1916, the board of directors duly levied other assessments on the members of defendant and that the deceased, W. M. Hobson, was duly notified of the same as in assessment No. 121, and that on each said written notice he was also notified of his arrearages.

"(7) I find that the defendant made no response to any of the notices referred to in paragraphs 5 and 6 above, and that he paid none of said assessments, but failed to pay any of the same.

"(8) I find that about the 10th of February, 1917, the clerk of defendant corporation wrote deceased a card showing the amount of his arrearages, and urging him to pay the same, and that about ten days thereafter he wrote deceased a letter reminding him again that he was in arrears and suspended, and urging him to reinstate himself. The deceased made no response to these communications, and I conclude that he had abandoned his policy and knowingly permitted the same to lapse, and the defendant company thereafter treated and considered deceased as suspended and his policy as finally lapsed; that assessments having been made in July and September, 1917, the deceased was not notified thereof, his name having been dropped, and he not being considered as a member of the association.

"(9) The defendant died about the 1st day of October, 1917, proper proof of death was made in due time and payment of policy demanded, which being refused, this suit was brought thereon.

"Conclusions of Law.

"(1) I conclude as a matter of law that the deceased, Hobson, was not at his death a member in good standing of the defendant company, but had ceased to be a member of same, and that his policy therein has lapsed for nonpayment of assessments, and that plaintiff cannot recover."

In her original petition plaintiff alleged that William Hobson duly paid all charges and dues that accrued upon his policy up to the date of his death, and had duly complied with all the provisions of the policy, and was a member of the defendant association in good standing at the time of his death.

In its answer the defendant specially denied that Hobson was a member of the association in good standing at the time of his death. The failure to pay assessments, which the trial judge found he did fail to pay, was specially pleaded, and by reason of such failure the defendant pleaded that the policy had lapsed and was no longer of any legal effect when Hobson died.

In reply to the answer of the defendant, plaintiff filed a supplemental petition, in which she...