Supreme Ruling of the Fraternal Mystic Circle v. Crawford

• Decision Date: 06 June 1903
• Citation: 75 S.W. 844
• Parties: SUPREME RULING OF THE FRATERNAL MYSTIC CIRCLE v. CRAWFORD.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

75 S.W. 844

SUPREME RULING OF THE FRATERNAL MYSTIC CIRCLE v. CRAWFORD.^*

Court of Civil Appeals of Texas.

June 6, 1903.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Action by L. P. Crawford against the Supreme Ruling of the Fraternal Mystic Circle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McCall & Temple and W. D. Williams, for appellant. J. M. Richards, for appellee.

SPEER, J.

Appellee is the surviving widow of W. H. Crawford, deceased, and appellant is a fraternal insurance order chartered under the laws of the state of Pennsylvania, having agents and subordinate rulings or lodges in this state. The suit was instituted by appellee, as beneficiary in a benefit fund certificate issued by appellant to her deceased husband, and the defenses were general denial, nonmembership in the order, and pleas of fraud and false statements upon the part of deceased in his applications for membership and reinstatement in the local ruling. Appellee replied by a plea of estoppel to appellant's rights to deny deceased's membership. Upon a trial before the court, judgment was entered in favor of appellee for the amount of the certificate, and the insurance order appeals.

The first assignment of error is that the court erred in rendering judgment against appellant, because deceased was never initiated into the Fraternal Mystic Circle. The evidence does show that deceased never appeared before the local ruling for initiation and was never initiated into the order, but it further appears that, with a full knowledge of this fact, the ruling received all his assessments and dues, and delivered to him the benefit certificate. We think that in thus treating him as a member, and in delivering to him the certificate, the appellant cannot be heard to question his membership. It has waived the matter. Order of Columbus v. Fuqua, 60 S. W. 1020, 1 Tex. Ct. Rep. 639; McCorkle v. Tex. Ben. Ass'n, 71 Tex. 149, 8 S. W. 516; Knights of Pythias of the World v. Bridges (Tex. Civ. App.) 39 S. W. 333.

The second and third assignments complain that, deceased never having been duly examined by an authorized medical examiner of the order, the judgment was for that reason erroneous. The laws of the order provide that "no examinations for the order shall be legal unless made by an examiner approved by the supreme medical director," and it seems that there was such approved examiner—one Dr. W. W. Wilkes—at Waco, where deceased applied for membership and was examined, whose name is subscribed to the report of the medical examination of the deceased. He denies that he made the examination, but admits that he probably signed the report at the instance of Dr Southworth, a deputy organizer for the order. Dr. Southworth testified that Dr. Wilkes was present during the latter part of the examination and signed the report. He further testified that he examined deceased himself, through an arrangement with the state deputy of the order, by which he (Southworth) was to examine his own applicants for membership, and to have physicians of his own selection to sign the reports, which were to be approved without further examination, and that he had examined many of his applicants and never heard the matter questioned. In this state of the evidence we cannot say the examination was not sufficient.

Appellant complains that certain answers of deceased to the medical examiner, the truthfulness of which by the terms of the certificate he had warranted, were in fact false and a concealment of the real facts, and that he knew them to be false and incomplete, notably to the fourth and...