Sovereign Camp, W. O. W. v. Wirtz

• Citation: 254 S.W. 637
• Decision Date: 10 May 1923
• Docket Number: (No. 8343.)
• Parties: SOVEREIGN CAMP, W. O. W., v. WIRTZ.
• Court: Texas Court of Appeals

254 S.W. 637

SOVEREIGN CAMP, W. O. W., v. WIRTZ.

(No. 8343.)

Court of Civil Appeals of Texas. Galveston.

May 10, 1923.

Rehearing Denied October 4, 1923.

Appeal from District Court, Colorado County; C. K. Quin, Judge.

Action by Mrs. J. G. Wirtz against the Sovereign Camp, Woodmen of the World. From a judgment for plaintiff, defendant appeals. Reformed and affirmed.

Wolters, Storey, Blanchard & Battaile, of Houston, for appellant.

Wurzbach, Wirtz & Weinert, of Seguin, for appellee.

GRAVES, J.

This suit was instituted by appellee, Mrs. J. G. Wirtz, as plaintiff below, against appellant, Sovereign Camp of the Woodmen of the World, as defendant below, by petition filed August 19, 1921. Plaintiff alleged that defendant had executed and delivered to J. G. Wirtz its beneficiary certificate, in the nature of a policy of insurance on his life, payable at his death to plaintiff, his wife, as beneficiary, in the sum of $2,000, and the additional sum of $100, for the purpose of erecting a monument at the grave of the insured. That the policy was issued March 23, 1895, and delivered April 5, 1895, and thereafter the insured remained a member in good standing of the defendant society, paying all dues and assessments legally levied and assessed against him and his said policy, and abiding by all the by-laws, rules, and regulations of the company legally binding on him, until the day of his death, which occurred on the 7th day of January, 1921. That due proofs of death were made and submitted to defendant, demand for payment of the amount of the policy made on the defendant, and refusal to pay by defendant. The beneficiary certificate made the basis of the suit is set out in full in the petition, and it is alleged that it bore the indorsement, "payments to cease after 20 years," which had reference to a by-law of defendant then in force, which by-law provided, in substance, that life membership certificates should issue to all members entering the order over 43 years of age (the age of insured when entering) when the certificate had attained the age of 20 years, and that thereafter the life member should not be liable for further dues and assessments on his policy; that by virtue of such facts the policy in question had become a paid-up policy in April, 1915.

The foregoing is the general statement appellee makes in her brief of her declaration on the policy she sued upon; to it may be added her specific averments as to the maturity of the policy for the amounts specified on its face, $2,000 and $100, at the expiration of the 20 years from its date, that is, on April 5, 1915, as follows:

"That the indorsement on said policy, `payments to cease after 20 years' was made thereon at the time of the execution and delivery of the policy, and is a part thereof; that said indorsement has reference to, and is intended to make a part of said policy the following provisions of the by-laws of the defendant then in force, which by-law is substantially as follows:

"Life Membership Certificates.

"Section 82. Life membership certificates shall be issued by the Sovereign Camp to all members of the Woodmen of the World under the following conditions: * * * of all members entering the order over 43 years of age, when the certificate has attained the age of 20 years; and that after the said life membership certificate has been issued the life member shall not be liable for camp dues, assessments or general fund dues; that the proper officers of the Sovereign Camp shall issue, quarterly, assessments calls upon all members of the Woodmen of the World, regardless of jurisdiction or nation, for a sufficient amount to pay all death claims accruing during the previous three months, for said life members who have died during said time, under the provision, and that any life member visiting a camp shall be greeted with the honors of the order and shall be seated at the right of the counsel commander, and shall also be entitled to wear a life membership badge, to be designed and prescribed by the Sovereign Camp. * * *

"That the indorsement `Rate 1.30' on said policy had reference to the monthly assessment rate to be paid by the insured, said rate being fixed by the then existing by-laws of the defendant at $1.30 for members of insured's then age. * * *

"That said insured thereupon at the expiration of 20 years, or on April 5, 1915, became entitled to have the life certificate aforesaid issued and delivered to him, and was not liable for any further dues, premiums, or assessments, and upon the death of said insured at any time thereafter, and without payment of any further dues or assessments by the insured, plaintiff became entitled to demand, collect, and receive, and defendant became liable to pay to plaintiff the sums of money in said certificate specified."

There were further allegations to the effect that the defendant had violated its contract by refusing either to deliver to the insured, while living, the life certificate so provided for, or to recognize the obligation it imposed after his death, but demanded the payment of further dues and assessments, and—

"that the insured, without waiving his right to insist on said clause and provisions of said policy and by-laws, but still insisting on the same, and under protest, continued to pay such assessments and dues as were legally levied and assessed against him, and continued a member in good standing of said order up to the time of his death, as aforesaid."

In contesting the right of the appellee to recover the face amount of the certificate sued upon, the appellant alleged:

"(a) That the contract existing by and between the said J. G. Wirtz and this defendant, provided as herein alleged that the said J. G. Wirtz would pay all dues and assessments which might be demanded of him, and would obey the provisions of the constitution, laws and by-laws of the defendant society, then in force, or which might be thereafter adopted.

"(b) That at the time the said J. G. Wirtz became a member of defendant society, he was required to pay to the society $1.45 each month, and to pay such extra assessments which might be required of him, and also pay such increased rate of assessments as might be required of him.

"The Sovereign Camp, the legislative body of the defendant society, met in 1899, and authorized the executive council to make an increase in the rates upon all members of the society, and in July, 1899, said executive council did pass a law, and made it a part of the constitution and laws, raising and increasing the rates upon the certificate of the said J. G. Wirtz, and all members similarly situated, 20 cents per month, and provided that said sum should be paid to the emergency fund. Said law became effective August 1, 1899, and thereafter the said J. G. Wirtz was required to pay a regular assessment of $1.65 per month, and in addition thereto to pay such extra assessments as might be levied.

"(c) In September, 1901, the rates were again raised and increased to members similarly situated with the said J. G. Wirtz, 50 cents per month, thereby making his rate $2.15 per month, together with such extra or increased assessments as might be required.

"(d) That the Sovereign Camp, in September, 1916, raised and increased the rate of J. G. Wirtz and all members similarly situated 60 cents per month, but provided that the member might continue to pay the rate theretofore paid by him, and have the same charged against his certificate as a lien, and the rate fixed and charged against the said J. G. Wirtz was $2.75 per month.

"That the said J. G. Wirtz did not pay this extra 60 cents per month, and that same became a fixed charge against his certificate for the month of September, 1915, and all subsequent months up to and including January, 1921, making a total of $38.40.

"(e) The Sovereign Camp in 1917 raised and increased the rates upon all members 10 cents per month per member. Said law became effective October 1, 1917, and all members were required to pay this 10 cents, together with at least the amount which they had paid prior to September 1, 1915, and the said J. G. Wirtz did pay the $2.25 per month until the last installment, which was paid by him, was December, 1920, and left unpaid the balance of the annual assessment for his certificate year for the months of January, February, and March at $2.85 each, amounting to $8.55.

"(f) That in 1919, the Sovereign Camp met in regular session and passed a law increasing and raising the rate of assessment upon all members of the defendant society as of their attained age, as set forth in section 60 of the constitution and laws. Said laws provided that if the member did not pay the rate as fixed for him at his attained age in order to obtain all the promised benefits contained in his certificate, and if he elected to continue to pay the rate theretofore paid by him, that he thereby elected a lien charge against his certificate as provided in said section 60 of the laws of defendant, and as provided in the plan of apportionment and adjustment, copy of which is attached to this answer and made a part thereof; that said J. G. Wirtz elected to continue to pay the rate theretofore paid by him, and thereby elected a lien charge on his certificate of $440. upon which he was required to pay interest at the rate of 4 per cent. per annum, but if the interest should not be paid by him in lifetime, then it should be deducted at the rate of 5 per cent. per annum. That the said J. G. Wirtz did not pay the interest on the said lien charge, and therefore the interest became due and payable on said $440, at the rate of 5 per cent. per annum, amounting to the sum of $22; that the deduction from the maximum amount of the certificate is as follows:

                Elected lien charge ....................... $440 00
                Interest at 5 per cent. for one

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