Home Benefit Ass'n No. 3 of Coleman County v. Wester

• Decision Date: 27 March 1912
• Parties: HOME BENEFIT ASS'N NO. 3 OF COLEMAN COUNTY et al. v. WESTER.
• Court: Texas Court of Appeals

146 S.W. 1022

HOME BENEFIT ASS'N NO. 3 OF COLEMAN COUNTY et al. v. WESTER.

Court of Civil Appeals of Texas. Austin.

March 27, 1912.

On Motion for Rehearing, April 24, 1912.

Appeal from Coleman County Court; T. J. White, Judge.

Action by F. E. Wester against the Home Benefit Association No. 3 of Coleman County, Tex., and others. From a judgment for plaintiff, defendants appeal. Affirmed.

E. M. Critz, for appellants. Woodward & Baker and Snodgrass & Dibrell, for appellee.

Findings of Fact.

JENKINS, J.

The appellant herein is a voluntary unincorporated association, having 1,000 members, the purpose of which is to secure the payment to the beneficiaries of its members a sum not to exceed $1,000 upon the death of such members in good standing. Its constitution and by-laws provide that upon the death of a member each of the members of said association shall be assessed the sum of $1, which is to be paid into the mortuary fund and held by the treasurer, to be paid to the beneficiary of the member who dies next after such assessment. The expenses are provided for by an assessment, not to exceed 15 cents upon each member. The parties to this suit made the following written agreement as to facts:

"First. That H. E. Wester had issued to him on the 8th day of October, 1910, a certificate of insurance payable to plaintiff upon the life of said H. E. Wester by the Home Benefit Association No. 3 of Coleman County, Tex., and that said certificate was issued in the manner and form as prescribed by the by-laws of said Home Benefit Association No. 3 of Coleman County, Tex. That on said day and date said H. E. Wester was admitted as a member of said defendant, the Home Benefit Association No. 3 of Coleman County, Tex., located at Santa Anna, Tex. That said H. E. Wester died on or about the 18th day of November, 1910, and that he was at the time of his death a member of said association. That he had paid all dues and assessments up to the time of his death levied against him by said association.

"Second. That the death of the said H. E. Wester was by B. E. Wester reported to the said Home Benefit Association No. 3 of Coleman County, Tex., and the directors of said association at the time verified the report of his death and ascertained that said report was true. That at the time of the death of said H. E. Wester there was on hand the sum of one thousand dollars ($1,000) in the treasury of said Home Benefit Association No. 3 of Coleman County, Tex. That said $1,000 so on hand is not now on hand with the treasurer of said association, said sum of money having been paid by said association under the order of its board of directors of the association in payment of a death claim, which death claim accrued subsequent to the death of said H. E. Wester, same having been paid to the beneficiaries of W. H. Harris, deceased.

"Third. That at the time of the death of H. E. Wester and at the time of the payment of said $1,000 to the beneficiaries of W. H. Harris, deceased, the following parties were directors and officers of said association, to wit: The board of directors of the Home Benefit Association No. 3 of Coleman County, Tex., are Leon Shield, Fred W. Turner, L. W. Hunter, and W. B. Woodward; and the president of said association is T. Richard Sealy, V. L. Grady was treasurer and E. M. Critz was secretary, and T. H. Lavender was vice president, and each of the above-named parties were also members of said Home Benefit Association No. 3 of Coleman County, Tex., at the time of the death of said H. E. Wester and at the time of the payment of said money to the beneficiaries of the said W. H. Harris, deceased, and that said parties are still the directors and officers of said Home Benefit Association No. 3 and are still members thereof. Woodward & Baker, Snodgrass & Dibrell, Attorneys for Plaintiff. E. M. Critz, Attorney for Defendant."

Judgment was rendered in favor of appellee against the association and against the directors Shield, Turner, Hunter, and Woodward for $1,000.

Opinion.

1. The contention of appellants that their exception to plaintiff's petition should have been sustained on the ground that the amount sued for exceeded the jurisdiction of the county court is not well taken. The petition alleged damages at $1,000, and it is immaterial that it further alleged that each of the defendants was liable for this sum. The ad damnum clause in a petition fixes the jurisdiction of the court when it depends upon the amount in controversy. McLaury v. Watelsky, 39 Tex. Civ. App. 394, 87 S. W. 1045.

2. Appellant, the said association, contends that the judgment should be reversed as to it for the reason that it was an unincorporated, fraternal organization, organized for charitable and benevolent purposes, and that as such it had no legal existence, and was...