Francis v. International Travelers' Ass'n

• Citation: 260 S.W. 938
• Decision Date: 15 March 1924
• Docket Number: (No. 9080.)
• Parties: FRANCIS v. INTERNATIONAL TRAVELERS' ASS'N.
• Court: Court of Appeals of Texas

260 S.W. 938

FRANCIS v. INTERNATIONAL TRAVELERS' ASS'N.

(No. 9080.)

Court of Civil Appeals of Texas. Dallas.

March 15, 1924.

Rehearing Denied April 12, 1924.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by W. H. Francis, guardian, against the International Travelers' Association. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Lewis V. Greer, of Dallas, for appellant.

Seay, Seay, Malone & Lipscomb, of Dallas, for appellee.

LOONEY, J.

W. H. Francis, the uncle and legal guardian of Marvin Wilson Francis and Louise Wallace Francis, minors, aged 6 and 8 years, respectively, at the time of their father's death as hereafter stated, brought this suit against the International Travelers' Association on a policy or certificate of accident insurance, issued to Marvin Lee Francis, to recover the sum of $5,000, the amount stipulated to be paid these minor children on the accidental death of their father.

The case was tried in the Sixty-Eighth judicial district court of Dallas county without the intervention of a jury, and resulted in a judgment against the plaintiff. The case is properly before us on appeal.

The facts are these: Appellee issued to Marvin Lee Francis, on April 4, 1910, its policy or certificate of membership No. 5735 (accident insurance) for $5,000, payable to his wife, Bessie D. Francis, in case of his accidental death; the wife and mother of the children Marvin Wilson and Louise Wallace Francis having died, they were regularly substituted in the contract as beneficiaries, and are, as such, entitled to whatever benefits accrued under the policy by reason of the death of their father.

On February 17, 1920, appellee also issued to Marvin Lee Francis a certificate or policy No. 4300, being health insurance only. Both of these policies were in full force and effect at the time of the death of the assured, which occurred on June 26, 1920, under the following circumstances: On June 17, 1920, the insured had a wisdom tooth extracted by a dentist in the city of Dallas. Infection from the operation resulted in Ludwig's angina, from which he died. Infection was an unforeseen, unexpected, and unusual result in such cases, and Ludwig's angina was unusual, unforeseen, and unexpected in such cases, and death from this or these causes was unforeseen and an unusual result.

The infection was caused either by the entrance of germs on the dental instruments used or from cotton used by the dentist in his treatment or from some other means; at all events, germs found their way into the tooth socket, did their deadly work, producing the unusual, unlooked for, and unforeseen result, death.

The pertinent provisions of the policy will hereafter appear in the discussion.

The application for membership contained, among other, the following:

"I do also agree that, if accepted as a member of the International Travelers' Association, that the benefits to be paid shall be those only which may be provided in the by-laws in force and effect at the time any accident occurs. I agree to comply with all requirements of the by-laws of said association as they now exist or may be hereafter amended."

At the time the deceased became a member of the association, the following were among the by-laws then in force:

"This association shall not be liable to any person for any indemnity or benefit * * * resulting from * * * death * * * from an accident to a member, which shall happen on account of or * * * from mechanical, medical or surgical treatment (operation made necessary by the particular injury for which claim was made and occurring within ninety days from the date of the accident excepted) or from local or general infections or joint inflammation, except when such infections or inflammations result from a visible open wound caused by external, violent, and accidental means."

The following by-laws were in force at the time of the death, but were adopted subsequent to the issuance of the policy:

"Whenever a member of this association in good standing shall, through external, violent, and accidental means, receive injuries which shall, independently of all other causes, result in his death within ninety days from the date of said accident, and notice in writing of said accident (not the result) has been received in the office of the association within the time required by the by-laws, the beneficiary designated by said member, if living, if otherwise, the legal representatives of said member, shall be paid the sum of $5,000, subject to the provisions hereinafter named."

Also the following by-law adopted after the issuance of the policy was in force:

"This association shall not be liable to any person for any indemnity or benefit for * * * death * * * which shall happen on account of * * * or from mechanical, medical, or surgical treatment (operation made necessary by the particular injury for which claim was made and occurring within ninety days from the date of accident excepted), * * * or from local or general infections (unless the infection is introduced into, by or through an open wound, which open wound must have been caused by external, violent, and accidental means, and be visible to the unaided eye."

On July 2, 1920, 6 days after the death of Marvin Lee Francis, appellant wrote and duly mailed to appellee the following letter:

"My brother died June 26th. He had a wisdom tooth pulled on the 17th of June, immediately developing blood poisoning that confined him until the time of his death. I find in his lock box that he held policy No. 4300 in your association. As I read the policy, his two minor children are entitled to the proceeds accruing by virtue of said policy. Please furnish me necessary papers to make proof of facts that may be required by you incident to same."

The presumption is, and we so find, that appellee received the notice in due course of mail on or about July 3, 1920. Not hearing from this letter, on July 20th appellant again wrote the association, requesting necessary papers to make claim on behalf of the minor children under the health policy. In reply to this letter, appellee, on July 21, 1920, wrote appellant, giving specific directions in regard to making out proof of death. Appellant furnished the proof, which was received by the association July 23, 1920, and, upon its receipt, the association paid the accrued benefits under the health policy.

On February 3, 1921, appellant wrote appellee, in substance, that under date of July 2, 1920, he notified them of the death of his brother and the cause; he also called their attention to the fact that he held policy No. 5735 for $5,000, the policy sued on, and requested papers for making proof of death; he also called attention of the association to the fact that he had furnished proofs of death in connection with the health policy above mentioned.

In reply to this letter of the appellant, the appellee, on February 4, 1921, answered, denying any liability whatsoever under the contract. In reply to this denial of liability, appellant wrote appellee on February 5, 1921, and again on March 23, 1921, insisting that appellee was liable, and requesting that the necessary papers be furnished upon which to make out proof of death, in case proof was required, and, in this connection, called attention to the fact that proof of death had theretofore been furnished in connection with the health policy, concluding the correspondence by requesting a definite answer within a few days as to whether or not the claim would be recognized and a statement of reasons for declining the claim, if it should be declined.

It seems that the letter of March 23d was transmitted to its attorneys for reply, who, under date of March 24th, wrote appellant as follows:

"As per your request, we took up with the officers of the association the disposition of the above claim, and they have also referred to us your letter of March 23d, a copy of which was sent to the writer. They request us to advise you that, in view of the fact that they do not deem themselves legally liable, they decline to entertain the claim."

This ended the negotiations, and the suit was soon thereafter filed.

The evidence shows that dentistry, or the pulling of teeth, is a branch of surgery, and is generally recognized as surgical treatment.

It was agreed that on June 17, 1920, the date on which the tooth of Marvin Lee Francis was extracted, and on June 26, 1920, the date of his death, there were more than 3,000 members of appellee association, and that on the dates named, and at the time the stipulation was made, October 3, 1922, the association had in its reserve more than $6,000.

Appellant's contention is that the policy issued to Marvin Lee Francis insured against accidental death, and that any provision of the by-laws that purport to limit, contradict, modify, or nullify the contingency insured against is illegal and invalid and that the policy will prevail over any such inconsistent or conflicting provision.

Answering this contention appellee says that the insured agreed to be bound by the by-laws of the association then in force or that might thereafter be adopted, and as these insured against death through violent, external and accidental means, and provided that the insurer would not be liable for death resulting from mechanical, medical, or surgical treatment, nor for death resulting from local or general infection, unless the infection was introduced into, by, and through an open wound, caused by external and accidental means, and, as the facts show that the death of the insured was the result of medical, surgical, or mechanical treatment, or that he received, as the result of such treatment, an infection, which caused blood poisoning resulting in death, from a local or general infection not introduced into, by and through a wound caused by external, violent, and accidental means, that the death was not covered by the contract.

It is very...