Hawkinson v. Order of United Commercial Travelers

• Decision Date: 13 June 1929
• Docket Number: (No. 2303.)
• Citation: 20 S.W.2d 101
• Parties: HAWKINSON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: Texas Court of Appeals

Page 101

20 S.W.2d 101

HAWKINSON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

(No. 2303.)

Court of Civil Appeals of Texas. El Paso.

June 13, 1929.

Rehearing Denied September 3, 1929.

Error from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by Christine Hawkinson against the Order of United Commercial Travelers of America. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

W. H. Winter and Knollenberg & Cameron, all of El Paso, for plaintiff in error.

C. W. Croom, of El Paso, for defendant in error.

HIGGINS, J.

This is a suit by plaintiff in error against the defendant in error, incorporated under the laws of Ohio, upon an accidental death insurance certificate issued to Chas. G. Hawkinson on April 23, 1910, of which certificate the plaintiff in error is the beneficiary.

By the terms of the certificate, Chas. G. Hawkinson was "insured in a sum not exceeding sixty-three hundred ($6,300.00) dollars, provided he shall sustain during the continuance of his membership, and while in good standing, bodily injury effected through external, violent and accidental means, which alone, shall occasion death immediately or within six months from the happening thereof, subject to the provisions, conditions and requirements of the constitution of the Order of United Commercial Travelers of America."

On July 3, 1923, the assured left Pomona, Cal., traveling east in an automobile. About 1 or 2 p. m. of that date his dead body was found in the car upon the desert about 12 miles east of Desert Center, in Riverside county, California. It is the theory of the plaintiff in error the deceased died of heat prostration, and the death so caused was insured against by the certificate quoted.

There is in the record a stipulation by counsel as to certain by-laws of defendant in error. The certificate makes no reference to by-laws; the reference is to the constitution of the defendant in error. The parties, however, have apparently treated the words "constitution" and "by-laws" as synonymous, and we will do likewise. At the time the certificate was issued a by-law of defendant in error provided "that payments authorized under the provisions of this section shall not cover or extend to any death, disability, or loss resulting from * * * sunstroke. * * *" Subsequently, and prior to the death of the assured, the by-law was amended so as to read: "Nor shall benefits cover or extend to any of the following conditions, whether caused by accidental means or not, to wit: Heat prostration, sunstroke or sunburn."

In its finding of fact the trial court found that deceased died of heat prostration. The court's conclusion of law was: "That, by reason of the amendment of the constitution excepting death by heat prostration, the protection and benefit theretofore enjoyed was removed; and that the beneficiary is not entitled to recover any benefit under the certificate of membership issued to the deceased." Upon this conclusion judgment was rendered for the defendant in error.

In the conclusion stated we think the court erred. There are decisions in some jurisdictions which support the ruling made, but the weight of authority is that a reserved right of a mutual benefit insurance association to amend or alter its by-laws does not authorize an amendment or alteration which materially impairs the obligation of its prior contracts of insurance. 2 Cooley's Briefs on Ins. (2d Ed.) p. 1170 et seq.; 45 C. J. p. 38, § 31. This seems to be the view adopted by the courts of this state. Ericson v. Supreme Ruling, etc., 105 Tex. 170, 146 S. W. 160; Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 471, 268 S. W. 438; Independent Order, etc., v. Brown (Tex. Civ. App.) 229 S. W. 939.

Defendant in error asserts that under the undisputed evidence the proper judgment was nevertheless rendered, and the case should be affirmed. In support of this position it presents a number of propositions which will now be considered. If the amended by-law naming heat prostration as an excepted risk is to be regarded as invalid, the point is made by defendant in error that death by heat prostration is not a risk covered by the certificate and by-law in effect at the time the certificate was issued.

The certificate upon its face contains no exceptions, but the by-law then in force excepted death by sunstroke. Sunstroke and heat prostration are both caused by exposure to heat, but according to the testimony of the medical experts there is a difference between the two conditions. The symptoms are different; the treatment, also. So the exception of death by sunstroke does not embrace death by heat prostration. Defendant in error does not so contend, but asserts that heat prostration, like sunstroke, is a disease, and is not covered by a contract which insures only against death occasioned by bodily injury effected through external, violent, and accidental means, as in the present case. We regard this contention foreclosed against defendant in error by the opinion of Chief Justice Phillips in Bryant v. Continental Casualty Company, 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, which has been quoted and followed in Higgins v. Midland Casualty Company, 281 Ill. 431, 118 N. E. 11, Elsey v. F. & C. Co., 187 Ind. 447, 120 N. E. 42, L. R. A. 1918F, 646, and Continental Casualty Co. v. Clark, 70 Okl. 187, 173 P. 453, L. R. A. 1918F, 1007.

It is true that in all of these cases the contracts...