The Maccabees v. Johnson

• Decision Date: 13 May 1925
• Docket Number: (No. 7357.)
• Citation: 273 S.W. 612
• Parties: THE MACCABEES v. JOHNSON.
• Court: Texas Court of Appeals

273 S.W. 612

THE MACCABEES v. JOHNSON.

(No. 7357.)

Court of Civil Appeals of Texas. San Antonio.

May 13, 1925.

Rehearing Denied June 10, 1925.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Action by Mrs. Callie Johnson against The Maccabees. Judgment for plaintiff, and defendant appeals. Affirmed.

Street & Coston, of Waco, for appellant.

Durwood H. Bradley, of Lubbock, and Sam J. Callaway, of Fort Worth, for appellee.

FLY, C. J.

This is a suit by appellee to recover of appellant a judgment for $1,000, alleged to be due her on a benefit certificate issued by appellant to Walter S. Johnson, her deceased husband, in which she was named as the beneficiary Appellant sought to evade payment of the amount because the deceased had failed to pay the January rate or assessment of $1.30. The cause was heard without a jury, and judgment rendered in favor of appellee for $1,000.

The facts show that on August 29, 1916, a benefit certificate for $1,000 was issued by appellant to Walter S. Johnson, and he paid the monthly rate of dues thereon up to January 1, 1922. He did not pay the dues for January, 1922, until February 24, 1922, when he paid the amount due for January and February. Appellee was the beneficiary in the certificate, and her husband died on March 5, 1922. After his death a notice was received from C. P. Buchanan, secretary of Tent No. 1200, located at Itasca, Tex., and who was the agent of appellant in the collection of dues from the members of Tent No. 1200, that deceased had been automatically suspended for nonpayment of the January assessment, amounting to $1.30. For at least three years immediately preceding his death Walter S. Johnson, deceased, who lived in Fort Worth, had sent his dues to Buchanan at Itasca, sometimes two months' payments at a time, and often after the end of the first month, and after the 10-day suspension period granted, after the end of a month, had expired. Buchanan had always received the payments and entered them as received during the month for which they were due. Deceased was hurt in an elevator on or about January 14, 1922, and grew worse until his death on March 5. It is significant that the custom of receiving two months' dues in the second month was declared at an end during this illness, and only the day before the death of Walter S. Johnson. The thought occurs that, had he not been in extremis at the time, no suspension would have been mentioned. Sending a health certificate to a dying man for him to fill out and return was the refinement of cruelty.

Buchanan received the post office order for the dues of January and February on or about February 25, but he did not notify Walter S. Johnson of his suspension until he was dead. He admits that he knew that Johnson had been hurt, and the facts create the impression that he was holding the forfeiture in abeyance until he could ascertain whether Johnson would recover. He was gambling on his living, and he took a close margin. He had for years been receiving dues from Johnson just as he received the last amounts, but he set aside the custom when he supposed the man was dying. This is one of the most extreme cases of forfeiture we have had brought to our notice, and "'tis pity, 'tis true, and pity 'tis, 'tis true" that a fraternal benefit society will place itself in the attitude occupied by appellant in this case. Such conduct shakes the foundation of fraternal benefit insurance, and destroys the confidence of the masses of the people in that form of insurance. This man for five years had been paying his monthly dues to appellant, and for three years had been paying them for two months in the second month, and without cavil or question such dues had been accepted until it was ascertained that the man was in an extreme condition, when the pound of flesh was demanded, and the courts of the country are informed that justification for the cold exactions of the society is found in the fact that "it is so nominated in the bond." The law will not sanction such action, and justice and equity will not tolerate it.

The record keeper was the agent of appellant in the collection and forwarding of the dues of the members, in spite of by-laws and regulations providing that he shall be the agent of the subordinate body and its members. As said by the Supreme Court of the United States in Supreme Lodge, Knights of Pythias, v. Withers, 177 U. S. 260, 20 S. Ct. 611, 44 L. Ed. 762:

"The position of the secretary must be determined by his actual power and authority, and not by the name which the defendant chooses to give him. To invest him with the duties of an agent, and to deny his agency, is a mere juggling with words. Defe...