296 S.W. 498 | Tex. Comm'n App. | 1927
This is a suit for $1,000 brought by defendant in error, De Witt Fern, on September 1, 1925, against the plaintiff in error, Heralds of Liberty, a beneficiary society, on two beneficiary certificates issued by the plaintiff in error on the life of Edward B. Fern; the defendant in error being named as beneficiary in each of the certificates. The cause was tried by the court without a jury, and judgment was rendered for the defendant in error for amount called for by the certificates. The Court of Civil Appeals affirmed this judgment. 289 S. W. 87.
The application upon which said beneficiary certificates were issued to Edward B. Fern was made by him in due form to the plaintiff in error on January '25, 1912. In such application it is stated that he is married. The said beneficial certificates were duly issued on February 26, 1912. The premiums on said certificates were payable monthly, - and all such monthly premiums were paid to the plaintiff in error as they accrued up to June, 1925. In the last named month demand was made on plaintiff in error by De Witt Fern for payment of said certificates, such demand being aceompaniecR by proof of death of Edward B. Fern, in the form of affidavits showing his disappearance as hereinafter shown. Payment was refused by the plaintiff in error.
At the time the certificates were issued, Edward B. Fern resided at .Amphion, in Atas-cosa county, and was county commissioner from the precinct in-which he resided. He had been county commissioner since December. 1910, and his term of office would have expired in December, 1912. On May 14, 1912, he tendered his resignation as county commissioner, which resignation was duly accepted on that date. On June 24, 1912, he wrote the plaintiff in error the following letter, to wit:
“Amphion, Texas, June 24, 1912.
“Heralds of Liberty, Philadelphia, Pa. Dear Sirs: Inasmuch as I am holding- certificate No. 366(MH)6' made in favor of my crippled brother, De Witt Fern, as I am going off to be absent indefinitely, I hereby my elder brother Bayard Fern, my legal agent to keep my dues paid up and transact such other business as may be necessary for me and in my name.
“Yours fraternally, Edward B. Fern.”
Immediately after writing this letter, he left Atascosa county and' has never returned.
The contention is made by the plaintiff in error to the effect that there is no evidence in the record raising the issue of Edward B. Fern’s death. In addition to what has already been stated, there is evidence to show the following facts:
The father and mother of Edward B. Fern married in Atascosa county in the year 1859, and continued to reside at Amphion in said county until they died. During that time their sons, Bayard Fern, Edward B. Fern, and De Witt Fern were born to them. De Witt Fern is a paralytic. He has not the use of his lower limbs. He has to crawl in order to get about. He has an impediment in his speech and speaks with difficulty. He is wholly incapable of manual labor or of making a living, and cannot read or write. He has been in this condition ever since his birth some forty-odd years ago, and at the present time is being supported by the county.
The three brothers continued to reside with their parents at Amphion until the latter died many years ago. After the death of their parents the three brothers continued to reside together in the same house at Amphion
“As to the outcome of the investigation, there wasn’t anything of it, except there was an investigation, that I know of.”
It is also in evidence that on May 14, 1918, Bayard Pern wrote a letter to the plaintiff in error in which he inquired if his brother Edward could take out any additional insurance on the “examination” that was made when the certificates in suit here were issued.
Aside from such inferences and presumptions as may be indulged from facts in evidence, as we have in substance stated such facts, there is no evidence tending to show that Edward was alive at any time after he wrote the last letter to De Witt as has been stated.
We think there is evidence to support the finding by the trial court that Edward B. Pern is dead. R. S. 1925, art. 5541; French v. McGinnis, 69 Tex. 19, 9 S. W. 323; W. O. W. v. Ruedrich (Tex. Civ. App.) 158 S. W. 170; W. O. W. v. Piper (Tex. Civ. App.) 222 S. W. 649; Primm v. Stewart, 7 Tex. 178 ; Thetford v. Modern Woodmen of America (Tex. Civ. App.) 273 S. W. 670.
We have duly considered all other matters of which the plaintiff in error complains and find no error. There is no pleading raising the issue of limitation discussed in the brief of plaintiff in error.
We recommend that the judgment of the-trial court, and that of the Court of Civil Appeals affirming same, be affirmed.
Judgments of the district court and Court of Civil Appeals both affirmed, as recommended by the Commission, of Appeals.