Hutchason v. Policemen's Burial Fund Ass'n, 11470.

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Hutchason v. Policemen's Burial Fund Ass'n, 166 S.W.2d 202 (Tex. App. 1942)
• Decision Date: 19 November 1942
• Docket Number: No. 11470.,11470.
• Parties: HUTCHASON v. POLICEMEN'S BURIAL FUND ASS'N.

166 S.W.2d 202

HUTCHASON v. POLICEMEN'S BURIAL FUND ASS'N.

No. 11470.

Court of Civil Appeals of Texas. Galveston.

November 19, 1942.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Suit by Mrs. J. H. Hutchason against Policemen's Burial Fund Association to recover death benefits allegedly due plaintiff under a membership certificate carried by plaintiff's husband with defendant association. From a judgment granting defendant's motion for an instructed verdict, plaintiff appeals.

Judgment affirmed.

Allen, Helm & Jacobs, of Houston, for appellant.

Sears, Blades, Moore & Kennerly and Geo. D. Neal, all of Houston, for appellee.

GRAVES, Justice.

In the court below, Mrs. J. H. Hutchason, a widow, sued Policemen's Burial Fund Association for death-benefits alleged to be due her, because of the death of her husband on November 27, 1940. The action was on a membership certificate, carried by J. H. Hutchason with the defendant Association, and providing for the payment of the residue of $1,500, after his funeral expenses had been deducted therefrom, to his widow, upon his death.

Policemen's Burial Fund Association defended on the theory that the certificate of membership was not in force at the time of deceased's death, because the deceased had ceased to be a qualified member, and because of nonpayment of dues.

At the conclusion of plaintiff's evidence, the trial court granted the defendant's motion for an instructed verdict; from that ruling the plaintiff perfected this appeal.

In this court appellant's first three points for a reversal are these "One.

"When the defendant Association accepted dues and premiums from the deceased, after it had knowledge of the occurrence of conditions giving it the right to forfeit the deceased's membership in the Association, it waived the right of forfeiture and recognized the continued membership of the deceased in the Association under the changed conditions.

"Two.

"After the defendant Association had once waived the right to forfeit the deceased's membership, it could not later revoke that waiver and insist upon the forfeiture.

"Three.

"The court erred in instructing the jury to return a verdict in favor of the defendant, for the deceased was excused from tendering further premiums and dues, when the defendant Association refused to accept the payments tendered in July for the months of July, August, and September."

A further two-point contention is made that the evidence heard raised issues of fact over these details:

(1) That the appellee-Association retained the payments it collected from the deceased from February 28 of 1939;

(2) The contradictory character of the witness Fowler's testimony — on direct examination — that appellee had collected and retained premiums from the deceased for the months of March, April, May, and June, 1939, placing the sums in its treasury, and that by him — on cross-examination — that he probably repaid all this money to the deceased, left a jury question over which testimony was correct.

After careful examination of the record, alongside the briefs and oral arguments of both parties, this court is unable to see eye-to-eye with appellant in any of her contentions.

She supports the structural first three of them by citations of authorities dealing exclusively with the rules applicable to one kind or another of insurance cases — that is, she likened herself, as the beneficiary under this benefit-certificate issued to her husband in the appellee Policemen's Burial Fund Association, to what would have been her resulting situation, had that organization been an insurance company created, or at least regulated, by statutory law; whereas, under the undisputed facts, it was merely a voluntary, non-profit, unincorporated association, and the contract she here declared upon between her husband and it was not an insurance contract in the ordinary acceptation of that term at all, but merely a private agreement between her husband and all other members of the Association for the purpose of mutually and reciprocally providing, inter sese, burial benefits for themselves and their beneficiaries, only so long as they (being contemporaneously in good standing with it) also remained members of the Houston Police Department; by its express terms no member being qualified to retain his membership in or his burial certificate from the Association, after he had ceased to be a member of such Police Department, unless he had had 10 years or more of continuous service with that Department. Wirtz v. Sovereign Camp, 114 Tex. 471, 268 S.W. 438; Brown v. Harris County Medical Soc., Tex.Civ. App., 194 S.W. 1179; Manning v. San Antonio Club, 63 Tex. 166, 170, 51 Am.Rep. 639; Harris v. Thomas, Tex.Civ.App., 217 S.W. 1068; Gaines v. Farmer, 55 Tex.Civ. App. 601, 119 S.W. 874; 5 C.J., page 1341, §§ 25, 26; 7 C.J.S., Associations, § 11.

As indicated, the undisputed evidence here showed that appellant's deceased husband had not been such a member of the Houston Police Department for 10 years — in fact, he had only been a member eight and a quarter years; and he had ceased to be a member at the end of such eight and a quarter years on February 28 of 1939, the date of his discharge from the Houston City Police Department for physical inability, and that he did not die until November 27 of 1940.

So that right at its base, the cause of action declared upon by the appellant was not referable to the rules of law appertaining to benefits inuring to beneficiaries under policies of ordinary insurance, but to those governing an entirely different form of contract, which was thus a private one between the appellant's deceased husband and all his fellow makers of it, which under their self-imposed constitution and by-laws, was specifically only effective as to him so long as he remained a member of the Houston Police Department, short of 10 years or more of continuous service therein; wherefore, on the face of the rules and regulations they themselves set up as the measure of their benefits, she did not come within the principles of waiver, as applied to insurance contracts she so depended upon.

Indeed, as recited supra, under such Association agreement he made with his fellow members thereof, her deceased husband was...