Hutcherson v. Sovereign Camp, W. O. W.

• Decision Date: 20 April 1923
• Docket Number: (No. 3918.)
• Parties: HUTCHERSON et al. v. SOVEREIGN CAMP, W. O. W.
• Court: Texas Supreme Court

Page 491

251 S.W. 491

HUTCHERSON et al. v. SOVEREIGN CAMP, W. O. W.

(No. 3918.)

Supreme Court of Texas.

April 20, 1923.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Gladys Hutcherson and others against the Sovereign Camp of the Woodmen of the World. Judgment for defendant was affirmed by the Court of Civil Appeals (241 S. W. 516), and plaintiffs bring error. Reversed and rendered.

On account of the disqualification of the regular judges to sit in this case, the Governor appointed to hear the same the following Judges: Hon. G. C. CLEGG, of Trinity County, as Special Chief Justice, and Hon. GEORGE S. KING, of Harris County, and Hon. J. W. MADDEN, of Houston County, as Special Associate Justices.

Seagler & Pickett, of Palestine, for plaintiffs in error.

Campbell, Greenwood & Barton, of Palestine, for defendant in error.

KING, Special Associate Justice.

Plaintiff in error, so far as is material to here state, in view of the conclusions reached, sought by this action to recover, as the beneficiary designated in a benefit certificate, issued and delivered by defendant in error, insuring the life of her husband. From an adverse judgment in the district court she prosecuted an appeal to the Court of Civil Appeals for the First Supreme Judicial District, where the judgment of the lower court was affirmed. 241 S. W. 516.

The certificate sued upon partakes of the nature of an ordinary life contract, and constituted an obligation on the part of the insurer to pay her the money therein stipulated upon the death of the assured at a time when all assessments had been paid and while, under the by-laws, constitution, and certificate, which were made a part of the contract, the insured was in good standing.

Among the provisions and conditions specified in the contract thus formed, of which there were many, but one is considered material: It provides:

"If the member holding this certificate should die by the hands of the beneficiary, or beneficiaries, named herein, except by accident * * * this certificate shall be null and void and of no force and effect, and all moneys which shall have been paid, and all rights and benefits which shall have accrued on account of the certificate shall be absolutely forfeited, without notice or service."

Under this provision of the contract, defendant in error, by proper pleadings, then and now seeks to defeat a recovery.

It appearing that the insured did die by the hands of the beneficiary, we are called upon to determine whether or not, in the circumstances of the killing of the insured by the beneficiary, as agreed upon, the trial court and the Court of Civil Appeals have correctly determined that the circumstances of the killing were such as to bring the same within the exception defended upon, or it was not an accident.

The beneficiary was not an active party in the making of the contract. She had no vested interest therein, her rights in the contract were purely beneficial and were entirely contingent on the contract being in force at the time of the death of the insured, without his having changed the beneficiary. The Court of Civil Appeals therefore correctly determined that the issue as to whether the killing was, or not, an accident, must be determined from the standpoint of the assured. An event resulting in death may be objectively accidental, though the event causing such accident may subjectively arise and result intentionally on the part of the person responsible for the subjective cause. Biddle on Insurance, c. 10, vol. 2, p. 78; Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, 17 South. 2, 30 L. R. A. 208; American Accident Co. v. Carson, 99 Ky. 441, 36 S. W. 169, 34 L. R. A. 301, 59 Am. St. Rep. 473; Accident Insurance Co. v. Bennett, 90 Tenn. 256, 16 S. W. 723, 25 Am. St. Rep. 685; Richards v. Travelers' Insurance Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455; Supreme Council v. Garrigus, 104 Ind. 133, 3 N. E. 818, 54 Am. Rep. 298; Robinson v. U. S. Mutual Association (C. C.) 68 Fed. 825; Lovelace v. Travelers' Protective Association, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. (N. S.) 209, 47 Am. St. Rep. 638; Phelan v. Traveler's Protective Association, 38 Mo. App. 640; Gresham v. Equitable Accident Insurance, 87 Ga. 497, 13 S. E. 752, 13 L. R. A. 838, 27 Am. St. Rep. 263.

The case was tried upon an agreed stipulation of facts, signed by the respective parties, and afterwards approved by the trial court as being the facts so agreed upon and upon which the case was tried. Article 1949 of the Revised Statutes provides for the trying of causes upon agreed statements of fact. When a case is so tried, the agreed statement is to be considered in the light of well-defined legal limitations, and in the nature of a special verdict; it admits there is no dispute as to the facts, and constitutes a request by each of the litigants for a judgment, which each contends arises as a matter of law from the agreed facts.

The courts are without power, in the absence of a provision in the agreed statement providing otherwise, to draw any inference, or find any facts, not embraced in the agreement, unless, as a matter of law, such other inferences are necessarily compelled; and the judgment of the court must only declare the law which necessarily arises from the facts agreed upon. Article 1949, R. S.; 38 Cyc. 1934; Texas Mexican Railway Co. v. Scott, 60 Tex. Civ. App. 482, 129 S. W. 1170; Ozark Plateau Land Co. v. Hays, 105 Mo. 143, 16 S. W. 957.

As a general rule, conclusions of fact by the trial court have no office in the trial of a case upon an agreed statement of facts.

Two other principles of law, properly understood and applied, render much aid in correctly concluding what judgment, as a matter of law, under the facts agreed upon, and to be hereafter analyzed, necessarily arises. The one, whether the beneficiary, or the insurer, carried the burden of proof; the other, whether, if the insurer had the burden, it can recover, unless the facts agreed upon by it compel, as a matter of law, a judgment in its favor.

While the first question is not altogether free from difficulty, we have concluded that the great weight of authority places the burden of establishing the exception defended upon on the insurer. The identical question, so far as we have been able to find, has never been decided by the Supreme Court of this state in a suit upon an ordinary life policy or certificate, carrying such exception. It is to be observed that the exception defended upon is not embraced in, and does not form a part of, the provision obligating the insurer to pay in the event of death, while the insured was in good standing, but is inserted in a different place in the certificate as a proviso against liability in the event the insured died by the hands of the beneficiary, except by accident. The exception "except by accident" appears in, and is a part of, the general exception in the certificate relieving the insurer from liability in the event of death at the hands of the beneficiary. The whole exception, and each part thereof, must be considered together in determining what excuses the liability of the insurer, and when so considered the provision "except by accident" constitutes within the general exception itself a limitation upon such general exception, and therefore the general clause, considered in its entirety, is but a limited or conditional exception against liability and therefore falls within the general rule which places the burden upon the insurer to establish an exception against liability, where such liability "prima facie" appears, and compels a judgment in favor of the beneficiary, unless removed by the facts.

The question, as it arises in this case, is clearly distinguishable from the holding in Traveler's Insurance Co. v. Harris (Tex. Com. App.) 212 S. W. 933. That was a suit upon an accident policy, and before the insured could recover he had to establish the accidental event insured against, while here the beneficiary's case is made when it is shown that the insured had died while in good standing, with all assessments paid, if no other facts appeared. It was not incumbent upon her to show how he came to his death, and the only way the insurer could escape liability, when it was established that the insured had died while in good standing, with all assessments paid, was to establish by evidence, not only that he had died by the hands of the beneficiary, but that he had so died under such circumstances as did not constitute an accident. Grand Fraternity v. Melton, 102 Tex. 401, 117 S. W. 788; Home Benefit Association v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 35 L. Ed. 1161; McClure v. Great Western Accident Association, 141 Iowa, 350, 118 N. W. 271.

In Grand Fraternity v. Melton, supra, there was involved the exception in the insurance certificate rendering it void in case of self-destruction by insured while "sane or insane," and there Mr. Justice Brown held:

"When the plaintiff proved that J. H. Melton had died she established a prima facie right to recover. The burden was upon the fraternity to prove that Melton shot himself and that he did it intentionally."

So, in this case, the burden was upon the insurer to establish, not only that the insured died by the hands of the beneficiary, but that he died at her hands, under such circumstances as not to constitute an accident.

This brings us to the consideration of what the parties had in mind by the expression "except by accident," as used in the clause on which the defense rests. There occurs no expression of limitation to the term "except by accident," in the clause under consideration. Accident, as here used, will therefore be considered according to the general acceptation and use of the term. When so considered, it means the happening of an event not to be expected or anticipated in the light of common experience and of the existing circumstances. When used in an...