Royal Fraternal Union v. Lundy

• Decision Date: 22 October 1908
• Citation: 113 S.W. 185
• Parties: ROYAL FRATERNAL UNION v. LUNDY.
• Court: Texas Court of Appeals

113 S.W. 185

ROYAL FRATERNAL UNION v. LUNDY.

Court of Civil Appeals of Texas.

October 22, 1908.

Appeal from Bowie County Court; Sam H. Smelser, Judge.

Suit by Isaac G. Lundy against the Royal Fraternal Union. Decree for complainant, and defendant appeals. Reversed and dismissed.

Hart, Mahaffey & Thomas, for appellant. F. M. Ball, for appellee.

HODGES, J.

In view of the disposition we make of this case and the issues discussed, we think it unnecessary to do more than to state the character of the suit, and give some of the pleadings in detail. The suit was instituted by the appellee, plaintiff below, asking for a writ of injunction, restraining the appellant from forfeiting and canceling a certain policy of insurance which the appellee asserts he holds, and which had been theretofore issued to him by the appellant. Omitting the formal introductory portion of the appellee's original petition, it is as follows: "That the plaintiff is an individual residing in Bowie county, Tex., and that the defendant is a corporation chartered under the laws of the state of Missouri, to which was issued a permit by the state of Texas to transact business therein, after having designated the commissioner of insurance of the state of Texas as a proper person upon whom service may be had in all suits against the said defendant in the state of Texas, and at present Hon. Robt. T. Milner is the commissioner of insurance in this state. For cause of action the plaintiff alleges that heretofore, to wit, on the 19th day of August, A. D. 1902, in the state of Texas, upon application being made and accepted in the form required, this defendant issued to this plaintiff a certain certificate or policy of life, health, and accident insurance, under which he has protection and indemnity against sickness, accident, and death, and since the issuance and delivery of the same this plaintiff has faithfully performed each and every condition and requirement imposed upon him, whether by the terms of the said policy or certificate of insurance, or the constitution and laws governing the order. That the plaintiff was born, to wit, July 1, 1848, and he is now over the age of 60 years; and 60 years is the maximum limit whereby he is eligible to procure such indemnity as that contained and afforded by such certificate or policy of insurance, or by any organization transacting a like or similar business. That there is no time limit fixed for the termination of the said policy of insurance, but by the terms of the same, so long as the dues of the plaintiff are paid as required, the instrument and relationship which it creates between the parties exists during his lifetime. That by reason of his age of over 60 years this plaintiff cannot procure such or similar indemnity, and, having in good faith relied upon the continuity of the relationship which this defendant created by the issuance of the policy of insurance, plaintiff will be without the protection and indemnity which it affords, if the defendant is permitted to wrongfully, illegally, and unjustly act as it is threatening to do, by arbitrarily terminating the contract. Plaintiff says that he is now old and infirm from age and years; otherwise well and healthy as one ordinarily of his age could reasonably expect to be. That for years he has made prompt and punctual payment of every assessment and all dues required by him, and that he is on this day, the 30th of May, 1907, remitting to the defendant at St. Louis, St. Louis exchange, for his assessment and dues for the month of June, 1907, as per contract. That this plaintiff has faithfully performed every condition and obligation imposed on him by the contract, and entered into the same, as the defendant well knew, and now does know, for the purpose of having the protection and indemnity which the contract affords, and the contract to the plaintiff is reasonably worth, for the indemnity and financial aid which it affords, the sum of $500. That plaintiff is a man of good moral character, of exemplary habits, conduct, and deportment and that he is free from any wrongdoing that would impose a hardship or burden upon the defendant in the payment of the indemnity; that he is a man of moderate means, and in his declining years and old age is in need of and entitled to the indemnity and protection offered by the terms of the policy, which was contemplated at the time of applying for and receiving the policy in his younger days; and, unless restrained by your honor's most gracious writ of injunction, this defendant will do him the irreparable wrong and injury that it is threatening to do by arbitrarily, wrongfully, and unlawfully canceling out and terminating his policy. That the plaintiff now offers to perform every condition thereof. That the plaintiff's said policy of insurance No. 23,106 has been lost, and he cannot find same after diligently searching for it, and a copy of which is in the hands of this defendant, as are the constitutions and by-laws governing the order, and it is hereby notified to produce the same on a trial of this cause, otherwise parol evidence will be resorted to, to prove the same. Plaintiff says, further, that the defendant's effort to breach this contract and terminate this contract in the above manner was unjust and wrongful. That plaintiff here tenders in court, and again offers to pay, any dues of money now owing; and there naturally arose from the wrongful effort to breach the said contract the further damage of $200, incurred in the employment of counsel to prosecute this suit, for the recovery of which the plaintiff here prays for damages, alleging that said expense was reasonable and proper in the premises. Wherefore plaintiff prays, on a hearing of this petition, for the $200 item as damages last above mentioned, and for the issuance of your honor's most gracious writ of injunction perpetually restraining the defendant from unlawfully and wrongfully canceling or terminating the said policy or certificate of insurance, and for your honor's most gracious mandatory writ of injunction and mandamus compelling the defendant to restore and keep vital and of force and effect the said certificate or policy of insurance, and for costs of...