Opinion
No. 5359.
December 5, 1914.
Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
Action by L. E. Grayson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
T. H. Ridgeway, of San Antonio, for appellant. Carlos Bee and C. C. Todd, both of San Antonio, for appellee.
This suit was instituted by appellant for $300, insurance on the life of her husband, William Grayson, deceased, and $75, a funeral benefit. The cause was submitted to a jury on special issues, and upon their answers judgment was rendered for appellee.
Appellee is a fraternal benefit society, and William Grayson was a member thereof when he was killed in the boiler explosion in the roundhouse of the Galveston, Harrisburg San Antonio Railway Company at San Antonio on March 18, 1912. He had a life certificate in said society for $300, but, by reason of a failure to pay certain sums required by the constitution and by-laws, he was not in good standing or, as the members put the matter, he was "unfinancial," and his surviving wife was not entitled to receive the $300 benefit. The endowment tax had not been paid by Grayson for January, February, and March, 1912. By the terms of the benefit certificate, the beneficiary was not entitled to the $300 at his death, unless he was "in good standing in his * * * temple, * * * as provided for in the constitution, with the monthly dues and assessments paid in at the time of his * * * death, as the record of the Grand Temple and Tabernacle will sustain the fact." William Grayson had not paid the monthly dues and assessments, but died leaving them unpaid, as found by the jury. Under the laws of the society, "when the endowment tax of a Sir Knight or Daughter of Tabor fails to reach the Secretary of the Endowment Board by the twentieth day in the first month in each quarter, said Knight or Daughter of Tabor stands unfinancial with the Endowment Board of Grand Curators until the same is paid and reaches the Endowment Secretary's office."
It did not require the report of the secretary of the local society as to the delinquency of Grayson, but the mere fact that the endowment tax did not reach the secretary of the endowment board was sufficient to put him on the delinquent list. His membership in the local society may not have been affected by his delinquency, but his interest in the endowment fund was affected. It is provided by law that every certificate issued by a fraternal benefit association "shall constitute the contract between the association and the member." Rev.Stats. art. 4834. That contract not only provided that Grayson must be in good standing, but the monthly dues and assessments must be paid in at the time of his death.
There could be no waiver of any of the provisions of the laws and constitution of the association by the local body, because it is expressly provided in the statutes that no such waiver can be made. Rev.Stats. art. 4847. There could therefore be no question of estoppel, even if it had been alleged and proved, which it was not.
The burial tax had been paid by William Grayson and, if he was in arrears for two months' dues, he had not received the 30 days' notice required. He was in good standing, as far as the local society was concerned, although behind on the endowment fund. The uncontroverted testimony showed that Grayson was not suspended or expelled, but was in good standing, so far as the local society was concerned. The jury had no testimony upon which to find that he was not in good standing, if such was their intention. The question embodied two matters, that of good standing and that of payment of all dues and assessments, and the answer was in the negative without specifying the subject as to which the answer was given. He had failed to pay some dues and one endowment assessment, but had not been suspended, and consequently was in good standing in his local temple. His widow is entitled, under the laws of the society and the evidence, to the $75 burial expenses.
The judgment will be reversed, and judgment here rendered that appellant recover of appellee the sum of $75, less the dues to the local society for February and March, 1912, and all costs of this and the lower court.