Modern Woodmen of America v. Lynch

• Decision Date: 07 December 1911
• Parties: MODERN WOODMEN OF AMERICA v. LYNCH et al.
• Court: Texas Court of Appeals

141 S.W. 1055

MODERN WOODMEN OF AMERICA v. LYNCH et al.

Court of Civil Appeals of Texas. El Paso.

December 7, 1911.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by W. B. Lynch and others against the Modern Woodmen of America. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

Benj. D. Smith and W. H. Ward, for appellant. Heidingsfelders, for appellees.

McKENZIE, J.

The Modern Woodmen of America, a fraternal beneficiary society, organized and doing business under the laws of the state of Illinois, issued to Larry Robert Lynch, one of its members, a benefit certificate, insuring his life for $2,000 in favor of his mother, Rachel O'Neill Lynch. Larry Robert Lynch was killed August 28, 1909, and this suit is brought by his father and mother to collect the insurance.

The defendant pleaded that the plaintiffs' cause of action was founded upon contract between it and the insured, which contract consisted of the by-laws of the order, the application of the insured for membership and insurance, and of the benefit certificate, which contract it alleged had been breached and rendered absolutely null and void because the insured had engaged in the sale of malt, spirituous, fermented, vinous, and intoxicating liquors to be used as a beverage, by reason of which breach of said contract it had been discharged from all liability. The pleadings of the defendant set out minutely such parts of the benefit certificate, application, and by-laws as are applicable to its defense. From the testimony we find that the insured made an application for membership and insurance in said society, in which it is stated as follows: "I am engaged in an honorable and lawful business or vocation, and I am not now, nor occasionally, nor continuously, during any part of the year, directly or indirectly, engaged or employed * * * in any of the following occupations classed as hazardous or prohibited by the by-laws of said society, viz.: * * * Manufacture or sale of malt, spirituous, fermented, vinous, or any intoxicating liquors to be used as a beverage, in the capacity of proprietor, stockholder, agent, or servant. I agree that I will not hereafter, while a member of this society, engage in any of these occupations, except at the same time recognizing the full force and effect of the society's laws limiting or extinguishing its certificate of any member engaging in such occupations." The application further contained the agreement, with warranty, that the applicant would comply with and conform to any and all of the laws of the said Modern Woodmen of America, whether now in force or hereafter adopted, and that the answers and agreement as set out in the application shall form the basis of the contract between him and the Modern Woodmen of America. The insured further agreed in said application to make payment of all fines, dues, and assessments legally levied within the limit of time provided by the society's laws, and to conform in all respects to the laws, rules, and usages of the society then in force or which might thereafter be adopted and enacted by same, and that the application and the laws of the society should form the sole basis of his admission to and membership therein and of the benefit certificate to be issued to him by said society. Upon said application the society issued to the insured its beneficiary certificate in the sum of $2,000, and a copy of said application was attached to and made a part of said beneficiary certificate. It was provided in the benefit certificate that, if the insured should be or become engaged in the manufacture or sale of malt, spirituous, fermented, vinous, or any intoxicating liquors to be used as a beverage, in the capacity of proprietor, stockholder, agent, or servant, then the certificate should be null and void and of no effect, and all moneys which had been paid and all rights and benefits which had accrued on account of the certificate should be absolutely forfeited.

The by-laws of the society provided that its members shall be white male persons over 18 years of age, of exemplary habits and good moral character, who shall conform to the obligations in the ritual prescribed and obey the laws of the society now in force or as hereafter modified or enacted, who shall be believers in a Supreme Being, and who shall not, in the capacity of proprietor, stockholder, agent, or servant, be engaged in the manufacture or sale of malt, spirituous, fermented, vinous, or any intoxicating liquors to be used as a beverage. It is also provided in the by-laws, under the heading of "Qualifications of Applicants for Beneficial Membership," that the applicant shall be of sound bodily health and mind, of exemplary habits, and of good moral character, not engaged in a dishonorable or unlawful occupation, nor in the manufacture or sale of malt, spirituous, fermented, vinous, or any intoxicating liquors to be used as a beverage, either in the capacity of proprietor, stockholder, agent, or servant. And section 10 of the by-laws, under the heading "Disqualifications for Membership either Social or Beneficial," provides that no person shall be or become a member of this society, either social or beneficial, who is or shall be engaged in the manufacture or sale of malt, spirituous, fermented, vinous, or any intoxicating liquors to be used as a beverage, either in the capacity of proprietor,...