Sovereign Camp, W. O. W. v. James , 230 S.W. 435 ( 1921 )

I concur in the view of Judge WILKINSON that the pleading of the appellant was not sufficient to present the defense that the insured changed his occupation from that of farming to mining, and thereafter failed, within 30 days, to give the notice required and pay the increased assessment. I therefore concur in the affirmance of the judgment. I prefer, however, to base my concurrence upon the additional ground that, in my opinion, the evidence fails to raise the issue that deceased had changed his occupation from farming to that of mining, and had breached the provision of the by-laws relied upon. The evidence relating to this defense, in my opinion, does not go as far as the pleading, and, the pleading being insufficient, it is even more clear that the evidence is insufficient.

The agreement of the parties, introduced in evidence, shows that the deceased, Pat H. James, was a farmer at the time he applied for the benefit certificate sued on and at the time the same was issued and delivered to him, and then shows merely "that, subsequent to the issuance and delivery of the benefit certificate sued on in this case, the insured was engaged in mining, and that the death of the insured was caused by an explosion occurring in a mine where he was then employed." This agreement of the parties just quoted constitutes the only evidence in the record showing or tending to show any change of occupation from that of farming to that of mining. This shows, in my opinion, simply that, at some undefined time subsequent to the delivery of the benefit certificate, the insured was "engaged in mining," and that he was employed in a mine at the time of his death. The section of the by-laws of the appellant quoted in the opinion of Judge WILKINSON provides that, if a member change his occupation to that of mining, he should, within 30 days, notify the clerk of his camp "of such change of occupation," and that while engaged in the new occupation he should pay an additional assessment of 30 cents for each $1000 of the amount of his certificate. The evidence embodied in the above agreement does not raise the issue that the deceased had changed his occupation.

The word "occupation" has reference to the principal or regular business of a man's life, that to which he devotes his time and attention, such as a trade, profession, or other vocation or calling. This being true, the agreement introduced into evidence simply showing that the deceased, who was a farmer when he joined the order, thereafter, for a length of time not stated, "engaged in mining," and that he was employed in a mine when he was killed, does not show that he had changed his occupation — the principal business or work of his life — from that of farming to mining. It is not the act of mining, but the occupation of mining, that is made the basis for the increased rate of assessment. That the insured at some time "engaged in mining" does not alone show a change of occupation. A man having a definite occupation may engage in many other activities, and yet not to such a degree or for such a length of time as would constitute a change of occupation. An insurance policy excepting given occupations or requiring increased rates for such occupations deemed hazardous must be construed differently from those policies which except single acts from the scope of the insurance. See Joyce on Insurance (2d Ed.) §§ 2236 and 2870.

The provision of the by-laws allowing 30 days to give notice of "change of occupation" recognizes that a change of occupation is not effected by mere temporary changes in the principal work in which the member may be engaged. The by-laws did not prohibit mining or "engaging in mining," but Simply provided that one who changes his occupation to that of mining must give notice of such change of occupation within 30 days, and thereafter pay the increased rate mentioned, or suffer that penalty visited upon members for nonpayment of valid assessments made against them. Under this provision, a man might be engaged in mining for 29 days, and yet not be required to give the notice that he had changed his occupation, and not be required to pay the increased assessment, because, under this by-law, the fact that a man might be "engaged in mining" for even 29 days would not show a change of occupation, and would not support the forfeiture relied upon. The agreement introduced into evidence shows simply that the deceased was "engaged in mining" at some time not stated and for a length of time not stated after he joined the order. Whether he was thus engaged 1 day, 10 days, or 30 days is not stated. In order to show a forfeiture under the provision of the by-laws relied upon, it was essential for the defendant to show not simply that the deceased was "engaged in mining," but how long he had been so engaged, because the act of engaging in mining was not prohibited and does not furnish the basis for the forfeiture relied upon, that forfeiture arising only because of failure to give notice within 30 days of a change of occupation and thereafter pay the increased assessment applicable thereto.

Such being the state of the evidence, I am of the opinion that, if it be conceded that the pleading sufficiently presented this provision of the by-laws and its breach as a defense, still that the evidence embodied in this agreement — and that is all there is in the record — did not raise an issue of fact to be submitted to the jury. The evidence did not show how long the deceased was engaged in mining, and, this being true, there was no evidence upon which a jury could properly base a finding that the deceased had been "engaged in mining" for 30 days or more. Such a finding would have involved mere conjecture and speculation on the part of the jury.

The rule as to the burden of proof declared and applied in Insurance Co. v. Co-operative Association, 77 Tex. 225, 13 S.W. 980, and Travelers' Insurance Co. v. Harris (Com.App.) 212 S.W. 933, has no application to the question involved in this case. In the cases referred to certain risks were excepted from the general scope and protection of the policy, and it was held that the plaintiff, having the burden of proof to show that the loss complained of was covered by the policy, and an issue arising as to whether the loss was due to the excepted risk, had the burden of proof on this issue. Under the certificate involved here, persons following the occupation of mining were insured, as well as those who, when they were insured, were following some other occupation and later changed their occupation to that of mining. The forfeiture provided for, and upon which the defendant relies, is not based upon the change of occupation, but rather on the failure to pay the increased assessment applicable to the new occupation. The parties agreed that the insured was a farmer when he was insured; that he had paid all dues and assessments applicable to the occupation of farming. The courts hold, I think without exception, that the burden rests on the society to show what assessments have been made against the insured, and that they have been properly made and became due and were not paid, and a forfeiture resulted. The certificate does not, on its face, provide for any definite monthly or yearly assessment or premium. It simply requires a member to pay whatever the society assesses, and the burden rests on the society to show that assessments have been made against the member, that his liability to pay same accrued, that he failed to pay the same, and a forfeiture resulted. See Joyce on Insurance, § 1310, and Haywood v. Grand Lodge, etc.,138 S.W. 1194.

In my opinion, the bill of exceptions complaining of the refusal of the trial court to reopen the case and permit the defendant to offer the testimony of the witness Lawson shows no reversible error. The parties had entered into an agreement as to the facts covering this phase of the case. Both the parties rested, and the testimony of this witness had not been offered. The lengthy qualification attached to the bill suggests that a reopening of the case on this issue would have necessitated considerable delay in permitting the plaintiff to secure witnesses in rebuttal of the testimony of Lawson. I am of opinion that this bill, as a whole, fails to show an improper exercise of the discretion committed to the trial court with respect to such a matter.