Citations
- 22 S.W.2d 1107
Full opinion text
FUNDERBURK, J.
This is a suit by Mrs. Dora Allison, joined by her husband against the Sweetwater Progressive Mutual Life & Accident Association, seeking to recover upon a mutual benefit certificate for an alleged permanent partial disability consisting of the loss of the use of one foot. W. W. Davis was joined as a defendant in the case in his official capacity of secretary-treasurer of the association.
Upon the trial of the case two special issues were submitted to the jury, as follows:
“Special Issue No. 1: Has the plaintiff Dora Allison sustained the permanent loss of the use of her left foot by reason of the injury complained of in her petition? Answer ‘Yes’ or ‘No.’
Special Issue No. 2-. Has the plaintiff Dora Allison become permanently partially disabled by reason of injury to her left foot as complained of by her in her petition? Answer ‘Yes’ or ‘No.’ ”
The jury having answered both issues in the affirmative, judgment .was rendered for the plaintiff for $1,000 as prayed for. ■ The evidence based upon proper pleadings having shown that the defendant had a reserve fund of more than sufficient to pay the amount of the recovery, it was further adjudged that defendant W. W. Davis, as treasurer, make payment of the judgment out of funds in his possession belonging to the association. From the judgment the defendant has appealed.
It appears that the defendant association is an unincorporated mutual relief or benefit association which is expressly excluded from operation of the general insurance laws of the state by provision of Rev. St. 1925, art. 4859. Applicable provisions of the certificate in question read as follows:
“This certificate is granted in consideration of the statements, warranties and agreements made in the application hereof,” etc.
“As herein provided, this policy is made payable in the sum of $1000.00,- but in the case of death or total disability of the insured herein at any time before said membership shall reach 1000 members in good standing' the association will pay to the insured or beneficiary only $1.00 per member then in good standing. However, when the actual membership shall exceed 1900 in numbers this policy shall be payable to the insured or beneficiary in the case of permanent disability or death of the assured in the sum of two thousand dollars respectively, and shall so remain until the membership shall from some calamity or other reason be reduced to a number below 1400, in which event said policy ■ shall drop back to and become payable in the sum of one thousand dollars under the same conditions as above stated.
“After said membership shall exceed 1900, all assessments for death or permanent disability shall be $1.50 per member, and shall so remain until the membership shall be reduced below the said 1400 when it shall again drop back to the $1.00 assessment, and be payable as above stated.
“The loss of the use of both hands, or both feet, or one hand and one foot at the same time, or the irrecoverable loss of the sight of both eyes at the same time, caused by disease, sickness or accident, shall be considered as total permanent disability under the terms of ' this Certificate.
“Permanent Partial Disability Benefit. In event the insured shall at any time subsequent to the date of this certificate, while in good standing in this association, become permanently partially disabled, this association shall pay to the insured the sum of one half of one full assessment of one dollar, levied on each member in good standing at the time of such disability occurs, and which is paid into the association as a result of that particular assessment levy, to the amount of one-half of policy in forCe at that date. -
“The loss of the use of one hand, or one foot, or the irrecoverable loss of sight of one eye, caused by disease, sickness or accident, shall be considered