Modern Woodmen of America v. Yanowsky

• Decision Date: 19 April 1916
• Docket Number: (No. 5628.)
• Citation: 187 S.W. 728
• Parties: MODERN WOODMEN OF AMERICA v. YANOWSKY.
• Court: Texas Court of Appeals

Page 728

187 S.W. 728

MODERN WOODMEN OF AMERICA v. YANOWSKY.

(No. 5628.)

Court of Civil Appeals of Texas. San Antonio.

April 19, 1916.

On Motion for Rehearing, May 31, 1916.

Rehearing Denied June 21, 1916.

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

Action by Minnie Yanowsky, as assignee of Rosie Yanowsky and of the heirs of Shopsy Yanowsky, the beneficiaries named in a policy of insurance, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error. Reversed in so far as the judgment affects the interest claimed from Shopsy Yanowsky, and cause remanded.

Truman Plantz, of Warsaw, Ill., and Pat M. Neff, of Waco, for plaintiff in error. Arnold, Cozby & Peyton, of San Antonio, for defendant in error.

SWEARINGEN, J.

This suit was instituted by Minnie Yanowsky against the Modern Woodmen of America, an incorporated fraternal beneficiary organization, to recover $2,000 claimed to be due by virtue of the maturity of an insurance policy issued to Leon Yanowsky, a brother of plaintiff. The policy was payable to Shopsy and Rosie Yanowsky. Plaintiff claimed to own all the interests of both beneficiaries named in the policy, by virtue of inheritance and assignments from the beneficiary Rosie Yanowsky and from all the heirs of the beneficiary Shopsy Yanowsky. The defendant organization answered by general demurrer and affirmatively that there was no liability on the policy sued on, because of violations of the contract by Leon Yanowsky during his life. Among other violations it was averred that Leon Yanowsky had failed to pay assessment No. 271, for February, during February, whereby he was suspended, and his attempted reinstatement was invalid because of breach of warranty of health at time of reinstatement. The case was tried before a jury.

Plaintiff in error's first assignment complains of fundamental error and submits this proposition thereunder:

"Shadsa (or Shopsy) Yanowsky being named as one of the beneficiaries in the policy sued upon, he was a necessary party to his suit for the collection thereof. The failure to make him a party is therefore such fundamental error as will be considered on appeal without assignment of error thereon in the court below."

A sufficient answer to this proposition is that the petition of defendant in error alleged that Shadsa Yanowsky died in April, 1913, and there was uncontradicted evidence that warranted the jury in finding that Yanowsky was dead. The failure therefore to make Shadsa Yanowsky a party to the suit was not error, fundamental or otherwise.

Under the second assignment of error, plaintiff in error submits the following proposition:

"During coverture the husband has the sole management, not only of all community property, but also the sole management of the wife's separate property."

Inasmuch as the death of the husband, Shadsa Yanowsky, was both alleged and proved, this proposition under the second assignment presents no error.

The third assignment of error is as follows:

"Because the verdict is not sustained by the evidence, the facts proven being insufficient on which to base a verdict for the plaintiff."

This assignment is too general to require consideration. Stacy v. Delery, 57 Tex. Civ. App. 242, 122 S. W. 303; Estes v. Estes, 122 S. W. 305; First State Bank v. Jones, 139 S. W. 671.

The fourth, fifth, and sixth assignments complain of material omissions from the court's general charge. The assignments are as follows:

Fourth: "Because the court did not instruct the jury as to the law in this case as to whether or not the plaintiff, Minnie Yanowsky, had authority under the law to bring this suit."

Fifth: "Because the court did not instruct the jury as to what the law was in regard to the rights of Shopsy (Shadsa) and Rosie Yanowsky, who were named as the beneficiaries in the policy or certificate on which this suit is based."

Sixth: "Because the court erred in his general charge to the jury for the reasons stated in the defendant's exceptions taken and filed with the court before said charge was read to the jury, in this: The court did not instruct the jury in regard to the administration of the estate of Leon Yanowsky or the estate of Shadsa Yanowsky, and leaves the jury in darkness as to what the law is with respect to the transfer of interests of deceased persons."

"These assignments are not presented in accordance with the rules, and cannot be considered. Neither the assignments nor the statement contains the charge objected to. * * * Nor are we directed to the page of the record where the charge can be found." Darby v. White, 165 S. W. 481.

Furthermore, plaintiff in error did not request a special instruction to supply the omission now complained of. In 1907 the Supreme Court, through Justice Williams, held that it was necessary for the complaining party to supply an omission from the general charge by requesting a special instruction. Observe the following:

"* * * What is complained of was the mere omission of the court to go as far as it is now contended it should have gone, which omission should have been supplied by a request for a special instruction. Parke v. San Antonio Trac. Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; San Antonio & Aransas Pass. Ry. v. Lester, 89 S. W. 752. For this reason we say that the question indicated as in the minds of the Court of Civil Appeals does not appear from the certificate to be properly presented in the case." Yellow Pine Oil Co. v. Noble, 100 Tex. 360, 99 S. W. 1024.

The Legislature (Gen. Laws 1913, p. 114) made a change in the law governing charges to juries, requiring all objections to the court's charge to be presented in writing to the opposing counsel and the court before the jury were instructed. The question naturally arises: Since the passage of that act of 1913 is the trial court's attention properly called to the omission by exception, incorporated in the record by bill of exception, or is it still necessary to request a special instruction as was necessary before the act of 1913? The question is answered by the Court of Appeals; for in May, 1915, after the act of the Legislature of 1913, the appellate court held that a special requested instruction is still necessary to avail of an omission. Texas Central R. Co. v. Claybrook, 178 S. W. 581 (writ of error pending in Supreme Court).

For the reasons indicated, we cannot sustain the fourth, fifth, and sixth assignments.

The seventh assignment is as follows:

"Because the verdict of the jury is contrary to the overwhelming preponderance of the evidence, in that the overwhelming preponderance and weight of the evidence clearly showed that assessment 271 was not paid until about March 29, 1912, and was not paid it any time during the month of February, 1912."

The court's general charge instructed the jury upon the issue involved in this assignment as follows:

"If you further believe from the evidence that assessment 271 for the month of February, 1912, was paid to E. M. Hawk, the clerk of Bexar Camp of the Modern Woodmen of America, during the month of February, 1912, then you are instructed that your verdict must be for the plaintiff. If you believe from the evidence that assessment 271 for the month of February, 1912, was not paid during the month of February, 1912, then you are instructed to find for the defendant."

This charge was submitted to attorneys for plaintiff in error before being read to the jury. Plaintiff in error made no objection to the charge in so far as it submitted the issue of the date of payment of assessment No. 271. No charge was requested for an instructed verdict. It has been repeatedly held that complaint of the sufficiency of the evidence to support a verdict will not be considered where no exception was taken to the trial court's charge. In the case of Elser v. Putnam Land & Development Company, 171 S. W. 1052, the law is clearly construed:

"The act approved March 29, 1913 (Gen. Laws 1913, p. 114), which we have several times had occasion to consider, provides, among other things, that: `The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.' In the case before us the issues raised by the pleadings and evidence were generally submitted to the jury by the court's charge. * * * No objections to the court's general charge, nor to the special charge submitting the defense noted, were made in accordance with the terms of the act of the Legislature referred to. So that, if we are to give the effect that the law says shall be given, when the issues are submitted without objection, the plaintiff in error is in the attitude of a litigant who, after the introduction of the evidence, has submitted to him the charge of the court and special charges given, and who has `approved' such charges, thus legally assuming the position that the evidence before the court requires the submission of the issue to the jury for determination. If the facts were clearly uncontroverted which entitled the plaintiff in error to a judgment, he should have requested an instructed verdict. This he did not do, but assumed, as we have seen, the inconsistent position of saying to the court, in effect, This case cannot be taken from the jury on the ground that there is no evidence to support the cause of action or defense.

"In the case of Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991, this court, among other things, said: `If, as provided by the amended statutes (act of 1913, above mentioned), a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them.'

"If the proposition embodied in the quotation is correct, and we think it is, it can hardly be contended that plaintiff in error, under the circumstances stated, will now be...