McWilliams v. Modern Woodmen of America

• Decision Date: 02 December 1911
• Citation: 142 S.W. 641
• Parties: McWILLIAMS v. MODERN WOODMEN OF AMERICA.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

142 S.W. 641

McWILLIAMS v. MODERN WOODMEN OF AMERICA.^†

Court of Civil Appeals of Texas. Dallas.

December 2, 1911.

Rehearing Denied January 13, 1912.

Appeal from District Court, Navarro County; N. B. Daviss, Judge.

Action by Annie E. McWilliams against the Modern Woodmen of America. Judgment for defendant, and plaintiff appeals. Affirmed.

J. M. Blanding and Richard Mays, for appellant. Pat M. Neff and Benj. D. Smith, for appellee.

BOOKHOUT, J.

This suit was instituted in the district court of Navarro county, Tex., by Annie E. McWilliams, appellant, against the Modern Woodmen of America, appellee. The suit was brought to enforce the payment by the appellee of $1,000 on account of a certain benefit certificate issued by the said appellee for delivery to one John M. McWilliams, in which the appellant was designated as beneficiary. Plaintiff's petition alleges that "John M. McWilliams made application for membership in Bazette Camp No. 12,676, a subordinate lodge, located at Bazette, Tex., through one J. N. Cunningham, deputy head consul of the society; that the said Cunningham, under the custom of the defendant and authority in him vested, did adopt McWilliams as a member of the society; that his said acts were thereafter ratified by the camp and by the society; that thereafter McWilliams was examined, and his application for membership was forwarded to the head office of the society, where a benefit certificate was issued and forwarded to the camp, whose duty it was to deliver same to McWilliams, and such duty was a mere ministerial act; that McWilliams paid to the defendant all fees and charges of every kind up to the time of his death. Plaintiff further alleges that the constitution of the society provided that applicant should be adopted by the lodge, but that the defendant, in its eagerness to procure members, waived said provision and gave applicant the secret work in private, and this was the practice and custom of officials in Texas and well known to the defendant; that, notwithstanding the secret work had been given McWilliams by Deputy Cunningham, McWilliams desired and requested the camp to initiate him, and the camp refused; and that the said camp illegally and fraudulently and with malice refused to perform its plain and imperative duty to the said John McWilliams during said period of 60 days, and refused to deliver said certificate, as was its duty, and waited until the expiration of said time, and thereafter wrongfully and illegally claimed that they could not lawfully initiate him, and for which reason it was claimed he was not entitled to said certificate of insurance." It was alleged that McWilliams died July 10, 1908, and that plaintiff thereafter filed proofs of death and her claim was denied. Defendant's answer consists of a general demurrer, a general denial, and an affirmative plea: That the defendant is a fraternal beneficiary society organized under the laws of the state of Illinois, and transacting business as such pursuant to the provisions of the laws of Texas. That the contract sued on was evidenced by the bylaws of the defendant, the application for membership, executed by McWilliams, and the benefit certificate issued thereon, but which was never delivered to and accepted by McWilliams. That on the 24th day of January, 1908, McWilliams executed and delivered his application for membership to the society wherein he agreed "to conform in all respects to the laws, rules and usages of the society now in force or which may hereafter be enacted or adopted by same; that this application and the laws of this society shall form the sole basis of my admission to and membership therein, and of the benefit certificate to be issued me by said Modern Woodmen of America. I fully understand the obligations, organization, mode of government and laws of this society, and particularly that part of the laws defining the qualifications for and restrictions upon its members. I further understand and agree that the laws of this society now in force or hereafter enacted enter into and become a part of every contract of indemnity by and between the members and the society and govern all rights thereunder. And I waive for myself and beneficiaries all claim of benefit under this application until it shall be approved by the head physician and I shall be regularly adopted in accordance with the ritual of this society and shall make the payments as required by its bylaws laws at adoption, and any certificate which shall be issued to me in pursuance of this application shall be delivered to me after adoption and while in sound health, and in pursuance of the by-laws of the society."

Defendant alleged that the said application was the basis of a benefit certificate issued on the 18th day of February, 1908, to be delivered to McWilliams subject to compliance by him of the by-laws and his agreements in said application. Defendant further alleged that the said benefit certificate never became in force and effect for the reason that said benefit certificate was never delivered to the said McWilliams in compliance with the provisions of the by-laws, and that the said John M. McWilliams was never duly and regularly adopted as a member of the defendant, by reason whereof the said benefit certificate never took effect. Appellant replied to said answer by way of a supplemental petition and alleged a waiver of the provisions of the by-laws by Cunningham and pleaded estoppel. The case was tried on the 8th of December, 1910, and the court, upon motion of defendant, instructed the jury to return a verdict against the plaintiff, which was done, upon which verdict judgment was rendered. Plaintiff excepted to the judgment and perfected an appeal.

It is contended in the first assignment that the court erred in peremptorily instructing a verdict in favor of defendant, because there was evidence raising the issue as to the power and authority, actual as well as apparent, of J. N. Cunningham, deputy head consul, and agent of defendant, to waive the by-laws, requiring the adoption of John M. McWilliams in the lodge room, and to himself adopt the said McWilliams and give him the obligation, whereby he became a member of defendant order in good standing.

The proposition is presented that the evidence was such that the court ought to have submitted the case to the jury, on the issue of Cunningham's authority, real or apparent, to act for and bind the defendant. This proposition cannot be sustained. The defendant is a fraternal beneficiary society organized under the laws of the state of Illinois and having its head office at Rock Island, Ill. It was duly...