Sovereign Camp, Woodmen of the World v. Piper

On Motion for Rehearing. The third assignment of error assails the petition on the ground that its allegations are not sufficient to form the basis for a judgment, and complaint is made in the motion for rehearing that it was not considered. However, the assignment was considered and thought to be without merit, and we adhere to that opinion. The petition was assailed in the lower court only through a general demurrer, and that appears to have been merely formal and perfunctory, as no action of the court was invoked thereon. The only proposition under the assignment attacks the petition on the ground "that it failed to allege the terms and conditions precedent set out in the contract of insurance between the insured and the defendant, and failed to allege that said terms and conditions precedent had been complied with."

It is alleged in the petition that Charles Piper was a member in good standing of Sam Houston Camp No. 55; that at the time of his death all his dues and assessments had been paid, and that he was a member in good standing of the association, and had been a member in good standing for more than two years, and that the facts as to his disappearance were given to appellant; that demand had been made for the amount of the policy; and that payment had been denied because the "absence or disappearance of a member from his last-known place of residence for any length of time shall not be sufficient evidence of the death of such member, and no right shall accrue under his certificate of membership to a beneficiary or beneficiaries nor shall any benefit be paid until satisfactory proof has been made of the death of the member while in good standing." It was further alleged that it was impossible to make any other proof of the death of Charles Piper, except upon the presumption of death from an absence of seven years. The allegations, while general, are sufficient to state a cause of action in the absence of exception thereto. Appellant in its answer admits that it issued to Charles H. Piper a beneficiary certificate, and claims to have duly suspended him on April 1, 1913, because of failure to pay dues for February and March, 1913. That was an admission that Charles H. Piper was in good standing up to that time, which meant that he had complied with all conditions precedent to his good standing at that time. The petition alleged that the insured had disappeared on October 20, 1910, and that appellee sought to pay all assessments becoming due, but they were refused by the clerk of the subordinate camp. The allegations of the petition with the admissions of appellant were fully sufficient to meet the requirement that conditions precedent to recovery should be pleaded. If Charles H. Piper was in good standing in March, 1913, as admitted by appellant, he had paid all entrance fees, one advanced assessment of Sovereign Camp fund assessments and camp general fund, physiclan's examination fee, been properly obligated or introduced, and, as alleged, the beneficiary certificate delivered to him. An admission of membership in good standing was an admission that everything had been done to make him a member in good standing.

When a petition is not attacked by special exception, every reasonable intendment will be read into its allegations to sustain it, and, applying this rule to the petition in this case, it was ample to sustain the judgment. In the trial court appellant sought to evade the payment to a widow of one of its members who had been paying it money for years, on the ground that he had been suspended for nonpayment of dues, and that the claim of the widow was barred by four years' limitation, but in this court it is sought to destroy the judgment on the ground that the petition failed to make certain allegations. The allegations were sufficient, however, to justify a reading into them by intendment of everything necessary to meet the decisions cited by appellant. If a petition shows that it is amendable so as to meet every objection, then it is sufficient to sustain a judgment. Under the Texas rule:

"The general effect of a general demurrer is to admit the facts pleaded to be true, but to deny that they constitute a cause of action or ground of defense, and the only question to be considered under it is whether any cause of action or ground of defense is described in the pleading demurred to. Consequently, if sufficient be stated to enable the court to see that a good cause of action exists, however defectively, the insufficiency or defectiveness of the averment cannot be taken advantage of by a general demurrer."

In the case of Northwestern Ins. Co. v. Woodward, 18 Tex. Civ. App. 496,45 S.W. 185, it is stated by this court:

"A defective statement of a cause of action is not subject to a general demurrer. If it is so stated that it is amendable, it is good against a general demurrer."

There is no merit in the motion for rehearing, and it is overruled.