Mendez v. Sovereign Camp, W. O. W.

• Decision Date: 28 January 1925
• Docket Number: (No. 7286.)
• Citation: 269 S.W. 142
• Parties: MENDEZ v. SOVEREIGN CAMP, W. O. W., et al.
• Court: Texas Court of Appeals

Page 142

269 S.W. 142

MENDEZ v. SOVEREIGN CAMP, W. O. W., et al.

(No. 7286.)

Court of Civil Appeals of Texas. San Antonio.

January 28, 1925.

Rehearing Denied February 18, 1925.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by Concepcion Larez de Mendez against the Sovereign Camp Woodmen of the World, wherein Emilia Gonzales de Mendez intervened. From judgment for plaintiff, intervener appeals. Judgment reversed and rendered.

Sid Overton and Norton & Brown, all of San Antonio, for appellant.

Samuel Belden and Ed Haltom, both of San Antonio, for appellees.

FLY, C. J.

This suit was instituted by Concepcion Larez de Mendez against the Woodmen of the World to recover $1,000, alleged to be due her as the wife of Rosalio Mendez on a policy taken out by said Rosalio Mendez on his life, in said fraternal benefit society, said Concepcion being named as the beneficiary therein. The corporation, Woodmen of the World, admitted its execution and delivery of the beneficiary certificate upon the life of Rosalio Mendez, deceased, and that one Emilia Gonzales de Mendez, claiming to be the wife of the insured, and his two children, Ricardo Mendez and Antonio Mendez, were claiming to be the beneficiaries under the benefit certificate, and it tendered into court the amount of the insurance to abide the decision of the court as to who was the beneficiary. Emilia Gonzales de Mendez for herself, and as next friend to her minor children, Ricardo Mendez and Antonio Mendez, intervened in the suit, alleging that she was the lawful wife of Rosalio Mendez, deceased, and that the minor children were the offspring of the marriage between them, and were entitled to the insurance on his life. She further alleged that Concepcion Larez de Mendez was not the lawful wife of Rosalio Mendez, and never had been, and was not entitled to the insurance. In a supplemental petition Concepcion Larez de Mendez in effect admitted that she had never been lawfully married to deceased, but had lived with him as his wife, after procuring a marriage license, and the performing of a marriage ceremony by a justice of the peace, from July 13, 1916, until his death on June 10, 1923. The cause was tried without a jury, and the court rendered judgment in favor of Concepcion Larez de Mendez for $895.05, that the intervener take nothing by her suit, and that the corporation be discharged from further liability. The intervener appealed.

The evidence showed that on February 22, 1909, Rosalio Mendez and Emilia Gonzales, the intervener, were lawfully married, and lived together as man and wife until September 20, 1914, that on September 29, 1915, Rosalio Mendez filed a suit for divorce from his wife, Emilia Gonzales de Mendez; that no action was taken in the case except to issue a citation which was never served. On July 13, 1916, a marriage license was procured by Rosalio Mendez to marry Concepcion Larez, and a marriage ceremony was performed by a justice of the peace on the same day. Afterwards, on July 4, 1922, the deceased obtained a benefit certificate from the Woodmen of the World, in which Concepcion Larez de Mendez, described as the wife of the insured, was made the beneficiary. The suit for divorce filed by Rosalio Mendez against his lawful wife, Emilia Gonzales de Mendez, was dismissed by him on September 7, 1916, less than two months after the ceremony had been performed between him and Concepcion Larez. The lawful wife, Emilia Gonzales de Mendez, was never served with citation in the suit for divorce, and was the lawful wife of deceased when the spurious marriage ceremony with Concepcion Larez was performed. All the parties were living in New Braunfels at the time of the putative marriage.

Article 4832, Vernon's Sayles' Civ. Stats., confines the beneficiaries of death benefits in fraternal benefit societies to the "wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member." The statute provides that within the restrictions each member shall have the right to designate his beneficiary, and the converse of that provision would be that no one outside the restrictions can be designated. Within those restrictions the society is given authority to limit the scope of beneficiaries. The certificate issued by the society to Rosalio Mendez restricted the beneficiaries to the "wife, children, adopted children, parents, brothers, and sisters, or other blood relation, or persons dependent upon the member."

No amount of argument could bring Concepcion Larez within the provision as to beneficiaries. She was not the wife of Rosalio Mendez. Her marriage to him was performed while he had a legal wife living in the same town, and the petition filed by him for a divorce had no effect whatever upon that relation. Rosalio Mendez knew that he had not obtained a...