Citations
- 125 S.W.2d 1041
Full opinion text
TAYLOR, Commissioner.
John William Franklin Dabbs in December 1931 filed suit against Houston Life Insurance Company on a certificate of insurance issued by Houston Life Insurance Association, a local mutual aid, association, praying for recovery of $1,000 plus 12 per cent statutory damages and an attorney’s fee in the sum of $500. Plaintiff on findings of the jury was awarded judgment against defendant- for a total of $1620 as prayed. The Court of Civil Appeals affirmed the judgment. 95 S.W.2d 484, 488.
We are in agreement with the Court of Civil Appeals that there is evidence to support the trial court’s judgment in the amount of $1,000. The only material question remaining is whether that part of the trial court’s judgment awarding recovery for damages and attorney’s fees under the provisions of article 4736, R.C.S.1925, as amended, Vernon’s Ann.Civ.St. art. 4736, is correct.
The holding of the Court of Civil Appeals sustaining the trial court’s award of statutory damages and attorney’s fees is based upon the view that the burden of proof rested upon defendant to prove three facts, namely, (1) that defendant “was in fact a local mutual aid association existing pursuant to such article 4875a — 1 et seq. [Chap. 274, Act of 1929, 41st Leg., now Chap. 9A, 1938 Cumulative Pocket Part, Vol. 14, Vernon’s Ann.Civ.St]; (2) that it had accepted the benefits of and had qualified to do business under that statute; and (3) * * * was actually operating its business as such an association,” ■ and that having failed to prove the three facts designated, was “governed by the same statutes applied to other life insurance companies generally, * * *”; and was therefore liable for the statutory damages and attorney’s fees awarded against it.
We are not in accord with the view stated. The Praetorians v. Thompson, Tex. Civ.App., 79 S.W.2d 886, in which application for writ of error was dismissed, cited by the Court of Civil Appeals in support of its holding, has no application. It is specifically stated in the opinion in the cited case that the Praetorians did not plead or prove it was a fraternal benefit society. In the present case not only defendant pleaded its organization and the issuance of the certificate sued upon, as a local mutual aid association, and that subsequently it was chartered under the authority of article 4875a — 1 et seq., and its operation under the authority of that article as a local mutual aid association, hut plaintiff also pleaded in substance the same facts.
Plaintiff alleges that “heretofore, to-wit, on or about the 10th day of May, 1928, (the date of the issuance of the certificate) and prior thereto, the Plouston Life Insurance Association, a local mutual aid association, * * * was doing business in the City of Houston as a local mutual aid association * * * in accordance with the mutual assessment plan, but that about the- month' of December, 1929, said Houston Life Insurance Association ceased doing business as an unincorporated local mutual aid association and became an incorporated life insurance company, and the officers -of said association organized a corporation, purportedly, under the terms and provisions of the Act of 1929, 41st Leg., p. 563, Ch. 274, Article 4875a of the Revised Civil Statutes, for the purpose of writing life and accident insurance in * * * (Harris County and thirty-one other counties), all as more fully shown by certificate No. 01083, dated March 23d, 1931, issued by the Commissioner of Insurance to said defendant, which is here noiv referred to as if fully incorporated herein.” (Italics ours.) The material part of the certificate, which is signed by W. A. Tarver, chairman of the board, of insurance commissioners under the seal of the board, dated December 17, 1929, and incorporated by reference as a part of plaintiff’s amended petition, reads: “This is to certify that Houston Life Insurance Company, Houston, Texas, having complied with all requirements of law relating thereto is hereby authorized to pursue the business of a local mutual aid association within the following territory in the State of Texas, * * * the counties of (here follows list of counties) for the year ending March 1, 1930.” (Italics ours.)
The foregoing pleadings of the parties establish so far as the present record is concerned the facts embraced in subdivisions (1) and (2) set out above. Defendant is entitled under the pleadings as above summarized and quoted to have it taken as true that the association at the time of the issuance of the certificate was a local mutual aid association and that subsequently it became an incorporated company under the provisions of the 1929 act and that it qualified to do business under the terms of the act. Lafield et al. v. Maryland Casualty Co., 119 Tex. 466, 33 S.W.2d 187; Hake v. Dilworth, Tex.Civ. App., 96 S.W.2d 121, 123; Dallas Ry. & Ter. Co. v. Redman, Tex.Civ.App., 88 S.W. 2d 136.
It appears from the record also that defendant, in addition to placing in evidence the certificate above referred to showing its authority to operate as a local mutual aid association for the year-ending March 1, 1930, introduced similar certificates showing its authority as Houston Life Insurance Company to operate as such association for the years ending March 1, 1931, and March 1, 1932; also other certificates of the board certifying the company’s authority to pursue the business of a local mutual aid association in the counties therein named for the years ending February 28, 1933 and 1934, respectively. It appears also that the preamble and article eight of defendant’s charter are in evidence. The preamble discloses substantially that the subscribers thereto incorporated themselves into voluntary association under the provisions of article 4875a — 1 et seq. Article eight discloses that the company “shall operate and do business without capital stock” and that its properties “consist solely of the office fixtures and furnishings of the company, which are of the probable and estimated value of $590.-00.” A semi-annual premium notice put in evidence by plaintiff, carrying date line “Houston, Texas. June 1st, 1931,” and marked paid, immaterial parts deleted, reads:
“In account with Houston Life Insurance Co., a Texas Corporation, (25