36 S.W.2d 771 | Tex. App. | 1931
This suit was instituted by appellee, Archie C. Smith, against appellant, Brotherhood of Railroad Trainmen, a voluntary unincorporated association, to recover on a benefit certificate issued by it to him. Appellee alleged that appellant, by the terms of said certificate, agreed, in event he should sustain an injury resulting in total and permanent disability, to pay to him the sum of $2,800. He further alleged that by the terms thereof the severance of an entire foot at and above the ankle joint should constitute such disability; that thereafter he sustained such injury; that his left foot was completely severed from his body between the ankle and kneejoint, and that he was thereby totally and permanently disabled within the terms of such certificate. He further alleged that he had made demand on appellant for the payment of said sum, and that payment had been refused. Based on such allegations he sought to recover liquidated damages and also attorney's fees in the sum of $750, which amount he alleged was reasonable. Appellant alleged that appellee had been expelled from the order for nonpayment of dues; that he had never been reinstated, and that the certificate sued on by him had been thereby forfeited and had become null and void. Appellant further alleged that it was a fraternal benefit society, and that it limited its membership to persons engaged in one hazardous occupation, that of service on the trains or in the yards of steam and electric railways.
The case was tried by the court without a jury, and Judgment rendered in favor of appellee against appellant for the sum of $2,800, with interest from June 7, 1929, the date of appellee's demand for payment and the refusal thereof. There was no request for findings of fact and conclusions of law, and none were filed.
Article 4846 of our Revised Statutes authorizes fraternal benefit societies to provide in their constitution or laws that no subordinate body nor officer thereof shall have the power or authority to waive any of the provisions of such constitution or laws. Appellant nowhere contends that it ever exercised the authority so conferred. According to its constitution and laws, dues and assessments were payable to the collector of the local lodge. The member making such payment was not required to show the remittance of any part thereof to the supreme lodge, nor is there any intimation that the failure of the collector to make such remittance would in any way affect his standing as a member nor invalidate his certificate. Payment by appellee to the collector was in legal effect payment to appellant, and appellant was charged with knowledge of all the facts acquired by him in the discharge of his duties in that connection, whether specifically communicated to it or not. His custody and control of the proceeds of said check were in legal effect the custody and control of appellant. His failure to return or tender to appellee the sum so retained by him is likewise chargeable to appellant. Appellant sought to justify such action by introducing testimony tending to show that appellee was indebted to the local lodge in such sum and that its collector applied the same to the discharge of such indebtedness. The judgment rendered by the trial court includes by implication a finding that such ground of justification did not exist. Even if appellee had been in fact indebted to the local lodge for dues and assessments theretofore advanced for him in the sum so retained, as contended by appellant, that fact would not have justified the collector in applying to the satisfaction of such indebtedness money tendered by appellee for the purpose of discharging specific dues and assessments in default and securing reinstatement in the order. Calhoun v. The Maccabees (Tex.Com.App.) 241 S.W. 101, 105, par. 8. Appellant having through its collector received a sufficient sum tendered by appellee as dues and assessments for the months of January, February, and March to satisfy the same and to entitle him to reinstatement, and there being testimony sufficient to sustain an implied finding that it approved and ratified the action of such collector in retaining such sum and thereby waived the prior forfeiture of appellee's benefit certificate and his formal reinstatement by his local lodge, the trial court must be deemed to have so found. Bailey v. Sov. Camp, W. O. W.,
Appellee contends by cross-assignments and propositions presented thereunder that the court erred in refusing him a recovery for statutory damages and reasonable attorney's fees. Appellant pleaded that it was a fraternal benefit society, and that as such it limited its membership to persons engaged in one hazardous occupation. Appellee admitted in open court that these allegations were true. The gist of appellee's claim that appellant is amenable to the statute imposing the payment of damages and attorney's fees for failure to settle his claim within thirty days after demand for such settlement is that it was a foreign organization, and that it had failed to procure a license to transact business within this state from the commissioner of insurance, to designate such commissioner as its lawful attorney upon whom service of all legal process might be made, and to file from year to year annual reports of its condition and standing, all as required by certain articles of the statute. Appellant admitted in open court that it had not complied with any of such requirements. Article 4857 of the Revised Statutes exempts fraternal benefit societies which limit their membership to one hazardous occupation from compliance with such requirements. Appellant being such a society, the court properly refused to award appellee such recovery. Further consideration of appellee's contention is therefore unnecessary.
The judgment of the trial court is affirmed.
ALEXANDER, J., took no part in the consideration and decision of this case.