Modern Order of Praetorians v. Hollmig

• Decision Date: 26 June 1907
• Parties: MODERN ORDER OF PRAETORIANS v. HOLLMIG.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

103 S.W. 476

MODERN ORDER OF PRAETORIANS v. HOLLMIG.^*

Supreme Court of Texas.

June 26, 1907.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Minnie T. Hollmig against the Modern Order of Praetorians. From a judgment for plaintiff, defendant brought error. On certified questions from the Court of Civil Appeals.

Hill & Dabney and Slator & Oatman, for appellant. Johnson & Seiter, for appellee.

BROWN, J.

This case comes to us upon the following certificate from the Court of Civil Appeals for the Third Supreme Judicial District. The statement and question are as follows:

"Plaintiff in error is a fraternal beneficiary association, organized and chartered under the general laws of Texas having no capital stock, and its sole and only funds for the payment of death benefits to its members are created and sustained by assessments made upon its members in accordance with its by-laws and regulations. On the 1st day of June, 1904, plaintiff in error executed and delivered to Hensel P. Hollmig, husband of defendant in error, a life benefit certificate, whereby it insured his life for the sum of $1,000, for the benefit of defendant in error, and thereby promised and agreed to pay her 60 per cent. of the face value of said certificate, to wit, the sum of $600, should the said Hollmig die within a year from the date of said certificate. Hollmig died on the 2d day of February, 1905, while said certificate was in full force and effect, and on or about the 1st of March, 1905, proof of the death of the said Hollmig was made and furnished to plaintiff in error, in compliance with its rules, and presented to its executive committee, which was the body vested with the power of passing upon the same, and at the time of furnishing said proof defendant in error demanded of plaintiff in error the sum due upon said benefit certificate, to wit, the sum of $600, but the payment thereof was refused, for which sum defendant in error brought this suit. Plaintiff in error pleaded, among other defenses, that Hollmig, the insured, had in his application for insurance, in making answers to the questions of the medical examiner, made false statements in reference to the condition of his health and having consulted or been treated by a physician, and that the contract of insurance made such statements warranties, and therefore it was not liable on said certificate. There was testimony tending to show that the said Hollmig had made false statements in his application for insurance in the respects above stated, and the evidence was conflicting as to whether or not such statements were material to the risk. The contract of insurance provided that the statements made by the insured in his application for insurance should be held to be warranties. Plaintiff in error, by several special charges, requested the trial court to charge the jury to the effect that if they believed from the evidence that Hollmig, the insured, had made false statements in his application for insurance, they should find in favor of plaintiff in error, regardless of whether or not such statements were material to the risk, which the court refused to do, but instructed the jury...