International Travelers' Ass'n v. Griffing

• Decision Date: 24 May 1924
• Docket Number: (No. 9118.)
• Citation: 264 S.W. 263
• Parties: INTERNATIONAL TRAVELERS' ASS'N v. GRIFFING.
• Court: Texas Court of Appeals

264 S.W. 263

INTERNATIONAL TRAVELERS' ASS'N v. GRIFFING.

(No. 9118.)

Court of Civil Appeals of Texas. Dallas.

May 24, 1924.

Rehearing Denied June 21, 1924.

Appeal from District Court, Dallas County; C. A. Pippen, Special Judge.

Action by Elsie S. Griffing against the International Travelers' Association. From judgment for plaintiff, defendant appeals. Affirmed.

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

Cockrell, McBride, O'Donnell & Hamilton, of Dallas, for appellee.

LOONEY, J.

Elsie S. Griffing, plaintiff, sister of Frank D. Griffing and beneficiary in a policy of life insurance or certificate of membership issued by International Travelers' Association, defendant, brought this suit on the policy, alleging that the death of her brother, the insured, occurred on March 7, 1919, within the terms of the insurance contract. The case was tried without a jury, and judgment was rendered in favor of plaintiff for $6,100, being the amount of the policy plus accrued interest, from which defendant appealed.

The insurance contract, in so far as is material, reads as follows:

"International Travelers' Association, Dallas, Texas, U. S. A., by this certificate of membership certifies, that Frank D. Griffing is a member of said International Travelers' Association and is entitled to all the benefits provided for in the by-laws of said association in force and effect at the time the accident occurs, from which his claim for such benefits arises, and by accepting this certificate he agrees to be bound by such amendments and changes in said by-laws as may be hereafter made. The by-laws of said association provide for the payment by said association of the following benefits for injuries caused by external, violent and accidental means: * * * In case of death, amount realized from one $2.00 assessment levied on each member, maximum payment, $5,000.00. * * *"

Frank D. Griffing, the insured, was secretary of the Elks Club of Dallas, located about one block east of the residence occupied at the time by him and his sister, the appellee herein. He was crippled, as the result of an injury received in the year 1912, necessitating the use by him of a crutch in walking; but, in other respects, he was well and in good physical condition at the time he suffered the injury of which complaint is here made. On November 25, 1918, it was raining and sleeting, rendering the sidewalks slippery, and about 1 o'clock p. m. on that day insured left the Elks Club to go home for lunch. Within 30 to 40 minutes after leaving the club, he reached home; his leg was broken in two places, and he was suffering intensely. The evidence shows that the injury was caused by a fall, due to the slipping of his crutch, and that he died on March 7, 1918, as the result of the accidental injury.

At the time of his death, an assessment of $2 levied on each member of appellant association in good standing would have realized at least $5,000. There was in force at the time a by-law of appellant providing that no death claim would be paid unless proofs of death were filed in the office of the association by the claimant within 91 days from the date of the death of the member. There was also a by-law in force providing that death benefits would only accrue in the event death ensued within 26 weeks from the date of the accident. The death of insured occurred within 26 weeks from the date of the accident, but no proof of his death was ever filed by claimant in the office of the association.

On November 29, 1918, a few days after the injury, insured made out and furnished to appellant, on a blank provided by it for that purpose, a detailed report in writing of the accident and injury, stating therein, among other things, that the accident occurred at 1:23 p. m. November 25, 1918; that it had been raining that day, causing him to slip and fall; and that no one else witnessed the accident.

On January 22, 1919, appellant paid to the insured $200 benefits under the terms of the policy on account of the injury received, as evidenced by the following combined check and receipt:

"International Travelers' Association, No. 5349. Dallas, Texas. 1/22/1919. Pay to the order of Frank D. Griffing, $200.00 two hundred dollars. Acceptance of this check is a terminating settlement in full by the payee herein named of all claims against the International Travelers' Association under certificate of membership No. 939 for loss or damage by reason of all accidental injuries to this date, including injuries received on the 25th day of November, 1918. [Signed] Dave D. Cahn, Sec'y & Treas. [Countersigned] Price Cross, Pres."

The check is addressed to the American Exchange National Bank, Dallas, Tex. The receipt was signed and the check was collected by the insured.

In the course of the trial below, appellant offered in evidence certain purported amendments to its by-laws adopted after the issuance of the policy. On objection by appellee the court excluded these amendments, to which ruling appellant excepted, prepared, had approved and filed a bill, which is a part of this record. These amendments, if legally adopted, changed the by-laws of the association in two material respects; that is to say, the provision as a condition precedent to liability that death should occur within 26 weeks from the date of the accident was changed to read 90 days, and, as touching the contingency insured against, which was described in the policy as "injuries caused by external, violent and accidental means," was by the amendment changed to read, "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," etc.

It will be noted that the change sought to be made by the amendment was the addition, after the words "accidental means," of the language, "which shall, independently of all other causes, result in death." As stated above, when these amendments were offered in evidence, they were excluded by the court on objection urged by appellee; but we fail to find an assignment of error complaining of the action of the court in this respect. It follows that the questions presented in propositions urged by appellant, based in any sense on the action of the court in excluding this evidence, and also questions presented by propositions based on the language of the by-laws as amended, are not before us, and therefore cannot be considered.

We now pass to the questions properly assigned and presented for review:

By an appropriate assignment and proposition, appellant insists that the judgment below is not sustained by, but is contrary to, the uncontradicted evidence, in that, at the time of the alleged injury and death of Frank D. Griffing, there was in full force and effect a by-law of appellant providing that no death claim would be paid unless proofs of such death were filed in the office of the association by the claimant within 91 days from the date of the death of said member, etc. In our conclusions of fact we found that a by-law such as is described above was in existence at the time of the injury and death of the insured, and we found, further, that no proof of his death was ever filed in the office of appellant within 91 days from the date of the death.

Appellant, in its answer below, pleaded the want of notice under this by-law, but the plea was not under oath, as required by the statute, nor did appellant attempt by allegation and proof to show that 91 days, required as a condition precedent to the right to sue, was a reasonable provision as applied to the contract in question.

Article 5714, Revised Statutes, provides:

"No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void, and, * * * in any suit brought...