Knights of Modern Maccabees v. Gillis

• Citation: 125 S.W. 338
• Parties: KNIGHTS OF MODERN MACCABEES v. GILLIS et al.
• Decision Date: 05 February 1910
• Court: Court of Appeals of Texas

125 S.W. 338

KNIGHTS OF MODERN MACCABEES v. GILLIS et al.

Court of Civil Appeals of Texas.

February 5, 1910.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Action by Mary F. Gillis and others against the Knights of the Modern Maccabees. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

J. B. McIlwain and Cureton & Cureton, for appellant. Odell & Johnson, W. F. Schenck, and N. F. Faulk, for appellees.

SPEER, J.

Mary F. Gillis, joined by her husband, A. W. Gillis, sought by this suit to recover from the Knights of the Modern Maccabees the sum of $1,000, the amount of a benefit certificate in her favor on account of the death of her son, Furman A. Gillis. The trial resulted in a verdict and judgment in plaintiffs' favor for the amount sued for. According to the agreement of the parties the real controversy between them is whether death assessment No. 134 was paid to appellant, or to some one duly authorized to receive the same, on or before October 30, 1906, and whether assessment No. 135 was paid on or before November 30, 1906. If these assessments were paid by Furman A. Gillis, or some one for him, before these respective dates, appellees, it seems, would be entitled to recover; otherwise, they would not. This is a sufficient statement of the case to make clear the assignments of error hereafter to be discussed.

Appellant complains first of the ruling of the court in refusing to permit it to introduce in evidence the notice and proofs of death furnished by appellees, and particularly that part of same which is contained in the affidavit of one O. D. White, attached to and made a part of said proof of death, which affidavit shows that Furman A. Gillis paid assessments Nos. 134 and 135 on November 1, 1906. O. D. White was shown to be finance keeper of Bosque Tent, No. 1386 of appellant order, of which deceased was a member. This testimony was excluded on the objection by appellees that the same was hearsay as to them and not binding. In this ruling the court erred. The proofs of loss, including the affidavit in question, were furnished to appellant in accordance with the terms of the contract between the parties, and their contents were admissible in evidence as representations on the part of these appellees as to the date of the payment of death assessments Nos. 134 and 135. The representations contained in them were intended to influence the company's action, and good faith and fair dealing would require that the appellees should be held to such representations, unless they can show in excuse that they were made under a misapprehension of the facts. It is not contended, nor can it be, that such representations are conclusive on the parties, but practically all the authorities agree that the proofs are admissible as representations, or "admissions by adoption" as some of the writers put it, subject, however, to explanation or contradiction. Mutual Benefit Life Insurance Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793; Jno. Hancock Mutual Life Insurance Co. v. Dick, 117 Mich. 518, 76 N. W. 9, 44 L. R. A. 846; Haughton v. Ætna Life Insurance Co., 165 Ind. 32, 73 N. E. 592; Wigmore on Evidence, vol. 2, p. 1265; Encyclopedia of Evidence, vol. 7, p. 574; Elliott on Evidence, vol. 3, p. 870. While some courts have held otherwise, the great weight of authority and the better rule we think is as above indicated. The question has never been decided so far as we are aware in this state, but the principle involved is illustrated in our holding that abandoned pleadings and the...