126 S.W.2d 10 | Tex. | 1939
This suit was instituted in the District Court of Harris County by the defendants in error, Monico Martinez and his wife, against the plaintiff in error, the Sovereign Camp of the Woodmen of the World (a fraternal beneficiary association, duly incorporated). The purpose of the suit is the recovery of the sum of $1000.00 alleged to be the balance due the defendants in error, as beneficiaries, under a beneficiary certificate issued by the Association to their son, Ebelio Martinez, now deceased. The recovery of penalties, interest and attorney's fees is also sought. The case was tried before the court without a jury, resulting in a judgment for the defendants in error for the sums sued for. The Court of Civil Appeals at Galveston affirmed the judgment of the trial court. (
The certificate provided for indemnity in the sum of $1000.00 in case of death of Ebelio. The latter was drowned while the certificate was in force and effect. The above sum of $1000.00 has been duly paid and no controversy arises in that respect. Attached to the certificate, as a rider, the following clause appears:
"Supplementary agreement attached to and made a part of and subject to the terms and conditions of a certificate of membership in the Sovereign Camp of the Woodmen of the World No. L-942034-L on the life of E. Martinez, the member.
There was no eyewitness to the drowning of Ebilio. No testimony of an eyewitness to show that the drowning was accidental was introduced at the trial. The trial court found that the drowning was accidental and this finding is based entirely on circumstantial evidence. The judgment was rendered for the additional sum of $1000.00 claimed by the defendants in error under the provisions of the double-indemnity clause set out above. Section 57 of the by-laws of the Association, which constitutes a part of the certificate in all respects as if same were embodied therein, provides, so far as presently material, as follows:
"Sec. 57. The following conditions, except as otherwise provided in the certificate, shall apply to every beneficiary, and *583 shall be binding on both the member and the beneficiary: * * *
"Tenth. The Association shall not be liable for the payment of double indemnity under any beneficiary certificate providing for double indemnity in case of the death of the member by accident, where it is claimed that death resulted from accidental drowning, cutting, poisoning, hanging, discharge of fire arms or shooting, unless the fact that such drowning, cutting, poisoning, hanging, discharge of fire arms or shooting was accidental shall be established by the testimony of at least one person other than the member, who was an eye witness to such drowning, cutting, poisoning, hanging, discharge of fire arms or shooting."
The Association claims that because Section 10 of this bylaw constitutes a contractural stipulation prescribing a condition upon which liability under the double-indemnity clause shall depend, and since said condition has not been met, no liability under the double-indemnity clause appears. This presents the only question in the case as it appears before us. It is argued that this claim asserted by the Association is sustained by the decision in the case of Southern Travelers' Assn. v. Shattuck,
1 The rule is settled in this State that a provision of a benefit certificate issued by a fraternal association, which purports to exclude from the general liability expressed in the certificate cases where proof of the death of the member depends upon presumptive or circumstantial evidence, is void as involving an attempt to prescribe a rule of evidence by which the courts are to be governed. Sovereign Camp of Woodmen of the World v. Robinson,
In the Robinson case, the Court of Civil Appeals said:
"The by-law under consideration is clearly opposed to the statute of this State referred to above in relation to the presumption arising from seven years' absence without intelligence concerning the absent person and one the appellant could not lawfully make. It was therefore invalid, or without binding force, from the date of its enactment and could not be invoked in this case to render ineffective any evidence thatotherwise might be sufficient to establish the death of theinsured." (Emphasis ours).
2 In the application to this Court for the writ of error in the above case (which we have examined) a complaint presented by the fraternal association, and one which was vigorously pressed, is to the effect that the above ruling of the Court of *585 Civil Appeals was erroneous for the reason that the statute mentioned was inapplicable to the facts of the case, in that seven years would not have elapsed until September, 1919. It follows, therefore, that the action of this Court in refusing the writ of error implies an approval of the ruling of the Court of Civil Appeals quoted above. The legal aspect of the question in the present case is essentially the same as the one decided there. In this case, the provision in question purports to deny the beneficiary the right to establish, by circumstantial evidence, the fact that the death of the member resulted from accidental means. This plainly contravenes Article 3713 of our statutes which reads as follows:
"The common law of England as practiced and understood shall, in its application to evidence, be followed and practiced by the courts of this State, so far as the same may not be inconsistent with this title or any other law."
For the reason that the by-law provision under consideration is in contravention of this statute, it is void, and consequently does not limit the character of evidence by which liability under the double-indemnity clause may be established.
The judgment of the Court of Civil Appeals affirming the judgment of the trial court, is affirmed.
Opinion adopted by the Supreme Court March 22, 1939.
Chief Justice Cureton not sitting.