Henry v. Railway Mail Mut. Ben. Ass'n , 1944 Tex. App. LEXIS 636 ( 1944 )

McDONALD, Chief Justice.

Recovery is here sought on a policy of insurance on the life of Walter S. Henry, issued by appellee. Appellant, the beneficiary named in the policy, sues for the face amount of the policy, the statutory penalty, and a reasonable attorney’s fee. The trial court, in a trial without a jury, denied a recovery. Plaintiff has appealed.

The only question presented on the appeal is whether the policy had lapsed for non-payment of a premium at the time of the insured’s death. It is undisputed that a premium was due on August 8, 1941. The insured died on August 23, 1941. Except for a question of waiver which we do not have to decide, the issue narrows to the question of whether the case is governed by the general insurance laws, and particularly Article 4732, Rev.St., which provides for a grace period of one month for the payment of premiums, or whether it is governed by the provisions of Chapter 8, of Title 78, Articles 4820 to 4859, applicable to fraternal benefit societies. If Article 4732, of the general insurance laws, is applicable, the one month grace period saves the policy from lapsing. If the case falls under Articles 4820 et seq., we must hold that the policy lapsed, because the provisions of Chapter 8 do not provide for a grace period within which premiums may be paid.

Art. 4820, as amended in 1931, Vernon’s Ann. Civ. St. Art. 4820, declares what are fraternal benefit societies. Art. 4823, which still remains as it appeared in the 1925 revision of the statutes, provides:

“Art. 4823. Exemptions. Except as herein provided, such societies shall be governed by this law, and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose. No law hereafter enacted shall apply to them, unless they be expressly designated therein.”

Heading Art. 4831 is the word “beneficiaries”. This article was amended in 1931 (see Vernon’s Annotated Civil Statutes, Art. .4831). In addition to other changes, the following sentence was added to said article:

“Nothing contained in this Act shall be construed to affect or apply to societies which admit to membership only persons engaged in one or more hazardous occupations, in the same or similar lines of business.”

Art. 4857, which still remains as it appeared in the 1925 revisions of the Statutes, provides in part as follows:

“Art. 4857. Examination of certain societies. Nothing in this chapter shall be construed to affect or apply to * * * Masons, Odd Fellows * * * or societies which limit their membership to any one hazardous occupation. * * * The Commissioner may require from any society such information as will enable him to determine whether such society is exempt from the provisions of this law.”

Appellee, although a fraternal benefit society, is a corporation chartered under the laws of the State of Illinois. The evidence shows without dispute that it was doing business in Texas both at the time of the issuance of the policy in question, and at the time of the trial of this cause. It is also undisputed that it had not complied with any of the statutes included! in Chapter 8, with respect to filing reports with the proper officials of this State, and that it did not have a permit to do business in Texas, as provided in such statutes.

Appellant contends that since appellee has failed to comply with the requirements of Chapter 8, it cannot claim exemption from the general insurance laws. Appellee contends that it is not required to file reports and do the other things required by the provisions of Chapter 8 because the provisions of Articles 4831, as amended, and 4857, relieve from such requirements a society that limits its membership to any one hazardous occupation, it being undisputed that appellee does limit its membership in this manner.

Under the view we take of the case, it is not necessary to determine whether the failure of a fraternal benefit society to comply with the various provisions of Chapter 8 will render it amenable to the general insurance laws.

The only conclusion we have been able to arrive at from a study of Articles 4831 and 4857 is that they mean what they say, to-wit, that nothing in Chapter 8 applies to the Masons and other lodges named, or to such societies as limit their membership to any one hazardous occupation, or, in the language of Art. 4831, to “persons engaged in one or more hazardous occupations, in the same or similar lines of business”. If nothing in Chapter 8 applies to the limited class of societies named, then it must follow that Article 4823 does not apply to them. Appellee argues that Article 4823 applies to all fraternal benefit societies. The' first four words of Article 4823 clearly indicate the contrary. The substance of Article 4823 is that all fraternal benefit societies are governed by Chapter 8, and are exempt from the general insurance laws, “except as herein provided”. We have not been able to see how the limited class of societies just referred' to can be exempt from all the burdens of Chapter 8, and yet be entitled to its benefits.

Since by its own terms nothing in Chapter 8 affects or applies to appellee, and since it was with respect to the policy in question doing an insurance business within this State, the provisions of the general insurance laws, and of Art. 4732 in particular, are applicable to this case. , We have been cited to the cases of Brotherhood of Railroad Trainmen v. Smith, Tex.Civ. App., 36 S.W.2d 771, and Journeymen Barbers’ International Union v. Bricker, Tex. Civ.App., 75 S.W.2d 987, but cannot accept them as controlling on the question which has just been discussed. In the Smith case the Court employs some remarks in disposing of a cross-assignment of error presented by the appellee in that case which have been cited as in support of appellee’s contention made here. The appellant applied for writ of error in that case, but the appellee did not. The point mentioned, therefore, did not reach the Supreme Court in the application for writ of error. The dismissal of the application for want of jurisdiction is no indication that the Supreme Court approved what was said by the Court of Civil Appeals in disposing of appellee’s cross-assignment of error. So far as we can ascertain no application for writ of error was made in the Journeyman Barbers’ Union case.

We hold that the death of the insured occurred within the grace period provided by Art. 4732, and that the insurance was in force. The parties stipulated in the trial court that $500 would be a reasonable attorney’s fee.

The judgment of the trial court is reversed, and judgment is here rendered in favor of appellant for the amount of the policy, the statutory penalty, attorney’s fee, and costs.