Eaton v. International Travelers' Ass'n

• Decision Date: 05 April 1911
• Citation: 136 S.W. 817
• Parties: EATON v. INTERNATIONAL TRAVELERS' ASS'N OF DALLAS.
• Court: Texas Court of Appeals

136 S.W. 817

EATON v. INTERNATIONAL TRAVELERS' ASS'N OF DALLAS.

Court of Civil Appeals of Texas.

April 5, 1911.

Rehearing Denied May 3, 1911.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by W. R. Eaton against the International Travelers' Association of Dallas, Texas. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Semp Russ and C. A. Davies, for appellant. T. J. Newton, Templeton & Ezell, and E. H. Powell, for appellee.

FLY, J.

Appellant sued appellee to recover on an accident policy the sum of $2,500 and attorney's fees, alleged to have accrued by reason of the loss by accident of one of his feet. Appellee pleaded its privilege to be sued in Dallas county, alleging that it has its principal office in the city of Dallas, in that county; that "as a condition precedent to and a part of the consideration for the issuance of a certificate of membership to plaintiff by this defendant, and as a part of the contract between the plaintiff and defendant for the issuance of the certificate to plaintiff herein sued upon by him, the plaintiff agreed to be bound by the by-laws of this defendant in force and effect at the time of the issuance of such certificate, and further agreed to be bound by such amendments and changes in said by-laws as might be made after the issuance of said certificate." It was further alleged "that at the time of the accident and injury to plaintiff, if any, there existed and still exists a bylaw of this defendant, which provided and still provides `that all suits against this defendant shall be filed in the city and county of Dallas, and state of Texas.'" The court sustained the plea of privilege, and ordered that a transcript of all orders and the original papers be transmitted to the district clerk of Dallas county.

It appears from the certificate of membership that by accepting the same appellant agreed "to be bound by such amendments and changes in said by-laws as may hereafter be made." The certificate was of date July 4, 1905, and on July 8, 1908, a by-law was adopted which provided, "All suits against the association must be filed in the city and county of Dallas, state of Texas," and was first published on December 12, 1908, about two months after the accident to appellant. It might have been surmised that it was dated back to cover accidents, had not the secretary and treasurer sworn that it was passed in July, 1908.

Appellee is a mutual assessment accident association, and it is provided in Rev. St. 1895, art. 1585, subd. 12, that "suits against life and accident insurance companies or associations may also be brought in the county and precinct in which the persons insured, or any of them, resided at the time of such death or injury." It was alleged, and not denied, that appellant resided in Bexar county at the time he was injured, and he undoubtedly had the right under the laws of Texas to institute and maintain a suit in Bexar county against appellee, unless that corporation had the power by a by-law to set aside such laws and provide that no suits could be instituted against it except in the one county of its choosing.

There is a cogent reason for permitting suits like this to be instituted in the county of the residence of the injured person; for in many instances it would be a virtual denial of the right to enter the courts at all, if a man could be required to sue in a court that might be, as in the case of a resident of El Paso county, for instance, hundreds of miles from his home. In laws as to the venue of suits, the individual citizen,...