Hiatt v. Fraternal Home

OPINION. BLAND, P. J. 1. Section 1408, R. S. 1899, from which defendant derives its power to issue certificates of insurance, declares fraternal beneficiary associations to be corporations formed and carried on for the sole benefit of its members and their beneficiaries and not for profit; requires that they have a lodge system, a ritualistic form of work and a representative form of government. By requiring a lodge system the statute evidently intended that no person could become a member of these orders until he was initiated as a member of one of its lodges. The by-laws of the defendant expressly so provided. William Hiatt, never háving been initiated into the lodge, never became a member of the association and was a person to whom the association could not rightfully issue a certificate of insurance. Matkin v. Knights of Honor, 82 Tex. 301. The only right that Hiatt had at any time was the right to become a member. Under a by-law of the order, which was a part of his contract, he lost this right by failing to present himself for initiation not later than the next meeting after his election. He let the time pass in which he might be initiated, notwithstanding his election, without first obtaining a dispensation from the supreme lodge permitting the local lodge to initiate him. This he did not procure. At the time of his death he was neither a member nor possessed of the right to become a member. But it is contended by plaintiff that the association' had waived the necessity of an initiation to entitle Hiatt to his certificate of insurance. That Ragsdale, secretary of the local lodge, acted upon the assumption that initiation into the lodge of the order was not requisite to the right to insurance, and that a large per cent of [115] the members of the lodge entertained the same notion, and had acted upon it, is apparent from the evidence, but that either Eagsdale or any member of the local .lodge was led into this belief by any action of the supreme lodge or instructions from any officer of the supreme lodge, either by correspondence or otherwise, the evidence, in our judgment, fails to establish. This loose and unauthorized course of conduct can only be accounted for upon the theory that some of the officers of the local lodge misinterpreted the instructions they had received from the supreme lodge, and were inattentive to the provisions of the by-laws and misunderstood the provisions of the statute of the State from which the order derived its existence and powers. But aside from these considerations the certificate is sued on as a complete and fully executed contract. Tinder the by-laws it could not be fully executed or become a complete contract until countersigned by the secretary and president of the local lodge. It was not signed by these officers until after Hiatt was dead. The living can not contract with the dead, nor complete the execution of a contract that was partially executed with a living person but now dead. The evidence is' full, complete and uncontradicted that the signatures of the secretary and president of the local lodge to the certificate were obtained by the false and fraudulent misrepresentations of Scott. It was no part of Scott’s duty as deputy organizer, either under his appointment or under his contract with the supreme lodge or under his appointment by the local lodge, to deliver certificates of insurance or to collect dues and assessments. The arrangement which he made with Eagsdale, secretary of the local lodge, to perform these duties was not binding either upon the grand lodge or the local lodge, and neither are responsible for*his acts in this regard,, much less for his fraudulent act in procuring the signatures of the officers of the local lodge to the certificate sued on. [116] 2. It is contended that the lodge received Hiatt's money and is therefore estopped to deny the contract of insurance. There is no question of estoppel raised in the case either by the pleadings or by the evidence. But if the question were properly in the case we would have to decide it against plaintiff’s contention. The evidence is that Hibler, as secretary pro tern, received the money from Scott; that as soon as he ascertained that Scott had deceived him and perpetrated a fraud both upon him and the association he went to him and tendered the money back but Scott would not receive it. Hibler then tried to pay the money to the local lodge but it would not take it, nor would the supreme lodge have it. There was no administrator of Hiatt’s estate to whom Hibler could pay or tender payment and he now had the money holding it for the rightful claimant whenever it presents himself. From no view of-the evidence does there appear the semblance of merit in the plaintiff’s case and the judgment is affirmed. Reyburn and Goode JJ., concur.