297 S.W. 232 | Tex. App. | 1927
This is an appeal from a judgment for $200 in favor of appellee, John H. Woods, beneficiary in an insurance *233 certificate issued to his mother, Rachel Woods, as a member of the Howze's Pride Lodge No. 37 of the Wonderful Workers of the World Benevolent Association. The color of the membership is scarcely open to doubt. The appellant defended on the grounds that Rachel Woods was "unfinancial" — that is, that she was delinquent — in the payment of her monthly dues at the time of her death on March 29, 1925, and had therefore forfeited her policy, and further that, if her receipt book showed payment of all dues, such entries had been made fraudulently and by connivance between John H. Woods and the secretary and assistant secretary of the local lodge. Appellee obtained a judgment in the justice court, and on appeal to the county court again obtained judgment upon a jury finding.
It appears that the Grand Lodge issued to its members, in addition to its certificate, a "Financial Receipt Book," which was retained by the member. Certain annual dues and monthly dues were to be paid by the member to the secretary of the local lodge, who made entries thereof in this receipt book and returned it to the member. The portion due the Grand Lodge was then forwarded by the secretary of the local lodge to the Grand Lodge. The member appears to have had no dealings directly with the Grand Lodge. The only issue submitted to the jury was whether or not Rachel Woods had paid to the local secretary all dues up to the time of her death, and the jury found that she had.
Appellant's assignments 3, 5, and 8 complain of testimony of appellee, of the secretary, and of the assistant secretary of the local lodge that appellee had paid all monthly dues of Rachel Woods prior to her death. There is no merit in any of these assignments. With the receipt book itself in evidence, it was immaterial that appellee testified as to what it showed. And the conflicts, upon cross-examination, in the testimony of the secretary and assistant secretary, were matters affecting the credibility of the witnesses, and their opportunity to know whether or not all dues were paid; matters with which we have no concern.
Nor was it error, as complained of in assignment No. 4, to introduce the "Financial Receipt Book" of John H. Woods, Rachel Woods' son and beneficiary, and that of Tom Woods, her husband. Ordinarily such books would not be admissible for any purpose in a suit upon the certificate of Rachel Woods, but it appears that for some reason the bylaws of said organization required that the beneficiary, or some other member of deceased's family, also be a member of the association. Perhaps their certificate would have been the best evidence of membership, but their receipt books would have been admissible to show that they were in good standing. Even in its answer appellant excepted to appellee's petition on the ground that it did not allege that appellee, John H. Woods, was a member of said defendant organization. Certainly no harm could result from proving it.
Assignment No. 6 complains that the secretary was permitted to testify, over objection, that she had never had any reason to question the assistant secretary's acts. The monthly dues in question were those for February and March, during which months it seems that the secretary was away from Cameron teaching school and the assistant secretary served in her stead. Appellant had charged both the secretary and assistant secretary with fraud in the transaction, and it appears that the secretary had approved the acts of the assistant secretary in making entries in the receipt books while she was away; but, if error, it was harmless.
Under its ninth assignment, appellant complains of the trial court's refusal to submit to the jury the question of whether or not appellee, in collusion with the local secretary and assistant secretary, had made false entries in Rachel Woods' receipt book, for the purpose of defrauding appellant. We overrule this assignment. Even if fraud was sufficiently pleaded by appellant, which we doubt, a careful reading of the statement of facts fails to disclose sufficient evidence to go to the jury on this issue. But we do not think that the question of whether the receipt book of Rachel Woods had been altered raised any question of fraud against the association. This book did not contain receipts showing payment of dues, nor were the entries therein signed by anyone. Regardless of what entries were made therein, or whether any at all had been made, if in fact Rachel Woods had paid all dues to the local secretary as they accrued, she was entitled to the benefits of her membership in the association, and there was sufficient evidence upon which the jury could find that she had.
The eleventh assignment is also overruled. Appellant made no objection to the question as submitted to the jury, and did not tender any other proper issue. It cannot be heard to complain for the first time on appeal that the issue submitted was not a proper issue as a basis for judgment. From the record we think it clearly appears that the issue as presented was the only issue in the case, and, though considerable latitude seems to have been allowed the witnesses in their testimony, the jury resolved the conflicts and contradictions in favor of appellee, which was their prerogative.
Finding no such error in the record as would authorize a reversal, the judgment of the trial court is affirmed.
Affirmed. *234