Sovereign Camp Woodmen of the World v. Gray

• Decision Date: 22 June 1901
• Citation: 64 S.W. 801
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. GRAY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

64 S.W. 801

SOVEREIGN CAMP WOODMEN OF THE WORLD v. GRAY.¹

Court of Civil Appeals of Texas.

June 22, 1901.

Appeal from district court, Tarrant county; Mike E. Smith, Judge.

Action by John Gray against the Sovereign Camp Woodmen of the World. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Matlock, Miller & Dycus, for appellant. R. C. Fuller and Capps & Cantey, for appellee.

CONNER, C. J.

Appellee sued upon a beneficiary certificate issued by the appellant for $1,100 on the life of Lewis Gray March 31, 1899, and by its terms payable to appellee. Lewis Gray died of smallpox December 22, 1899, and the only question before us is whether the certificate is avoided by the fact that Lewis Gray, in his application for the same, falsely stated "No" to the question, "Have you been successfully vaccinated?" It being undisputed that Lewis Gray had in fact been successfully vaccinated in 1889, and that his said answer was false when given. There is no statement of facts, but, in the special answer of appellant, urging the false statement as a "warranty," it is alleged, among other things, that the appellant order is a "fraternal, benevolent association, incorporated, not for the purpose of profit or gain, but in order to better the social and moral condition of humanity, and to protect its members in so far as to leave the widows, dependents, and orphans of deceased members properly provided for." The application signed by Lewis Gray and set forth in the court's findings of fact was for "membership" in "Hood Camp, No. 149," and the "Order of the Woodmen of the World," and "for participation in the beneficiary fund in case of my death." Said application contained a number of questions and answers not necessary to notice, but among others the one here involved, to wit: "Have you ever been successfully vaccinated? No. If not, until you are, do you waive all claims under certificate should your death result from smallpox? Yes." Following the answer, and immediately preceding the signature, was the following: "For the purposes of this application, I declare and warrant the foregoing answers and statements to be correct." The certificate sued upon provides that it "shall be null and void and of no effect * * * if any of the statements or declarations in the application for membership, and upon the faith of which this certificate was issued, shall be found in any respect untrue." We are of opinion that the trial court rightly held that the false statement mentioned did not operate as a waiver of all claims under said beneficiary certificate, and therefore properly gave judgment for appellee. When the status of a statement in an application for insurance made part of a policy issued therefor has been fixed and determined as a "warranty," as that term is understood in the law of insurance, the courts seem, in some instances, to have been exceedingly strict in enforcing the rule that a breach of the warranty will avoid a policy of insurance so providing. Hutchison v. Insurance Co. (Tex. Civ. App.) 39 S. W. 325. Says Mr. May (volume 1, § 156, of his work on Insurance): "The only question is, has the warranty been kept? There is no room for construction, no latitude, no...