International Travelers' Ass'n v. Francis

• Decision Date: 15 January 1930
• Docket Number: (No. 4229.)
• Parties: INTERNATIONAL TRAVELERS' ASS'N v. FRANCIS.
• Court: Texas Supreme Court

Page 282

23 S.W.2d 282

INTERNATIONAL TRAVELERS' ASS'N v. FRANCIS.

(No. 4229.)

Supreme Court of Texas.

January 15, 1930.

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

Action by W. H. Francis, guardian, against the International Travelers' Association. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (260 S. W. 938), and defendant brings error. Affirmed.

Seay, Seay, Malone & Lipscomb, of Dallas, for plaintiff in error.

Weeks, Morrow & Francis, of Wichita Falls, and Lewis V. Greer, of Dallas, for defendant in error.

CURETON, C. J.

The opinion of the Court of Civil Appeals, 260 S. W. 938, states the facts in this case quite fully, and we will not relate them further than may be necessary to make plain our conclusions.

Marvin Lee Francis held a life insurance policy issued by the International Travelers' Association, a mutual assessment accident insurance company, chartered under the laws of Texas, and upon his death the defendant in error, as guardian of the beneficiaries thereunder, brought this action. The policy was for $5,000, payable in the event of death caused "solely and exclusively by external, violent and accidental means." The insured died on June 26, 1920, from Ludwig's Angina, due to an infection following the extraction of a wisdom tooth a few days before.

There is no clause in the policy which would prevent a recovery for an accidental death resulting by or from a surgical operation or from an infection. The by-laws of the association, however, at the time the policy was issued, and at all times subsequent thereto, contained exceptions and provisions which, if given effect, would prevent recovery. The face of the policy contained language which was intended to make the exceptions contained in the by-laws a part of the contract.

The first question for determination is whether or not the exceptions contained in the by-laws, but not specified in the policy, may be invoked to defeat recovery. We are of the opinion that the exceptions in the by-laws, in so far as they limit the contingency insured against, cannot be given effect, and are not to be regarded as a part of the contract. This is so because of the statute. Revised Statutes 1925, art. 4797, which was in effect when the policy sued upon was issued, in part declares:

"Every policy or certificate issued by any such corporation shall specify the sum of money which it promises to pay upon the contingency insured against, and the number of days after the receipt of satisfactory proof of the happening of such contingency at which such payment shall be made. Upon the happening of such contingency, such corporation shall be liable for the payment of such amount in full at the time so specified, subject to such legal defenses as it may have against same. * * *" (Italics ours.)

This statute plainly states that the policy or certificate shall specify the sum of money it promises to pay "upon the contingency insured against," and clearly requires a statement of the "number of days after the receipt of satisfactory proof of the happening of such contingency" at which payment of the sum named shall be made. These statutory requirements cannot be complied with except by stating the contingency insured against. The insistence here is that the specification of the contingency in the broad language quoted from the policy and the reference to the exceptions in the by-laws is a sufficient compliance with the statute. With this we cannot agree. Since it is evident that the contingency must be specified in the policy, then under the statute, the whole of the contingency must be named; that is, the contingency with all exceptions, if any. We therefore cannot look to the by-laws for a limitation on the general language used in the policy naming the contingency insured against. The statute governs and controls. The language of the policy directing the policyholder to look to the by-laws to ascertain the full or limited contingency under which the company agrees to pay, is in direct conflict with the statute. The legislative mandate is dominant and must prevail. Corporate by-laws cannot be made to repeal or supersede a statute. In fact, the statute which requires the specification of the contingency insured against must be regarded as entering into and forming a part of the contract, to the same effect as if embodied therein. The restrictive by-laws, in so far as they limit the right of recovery for accidental death named in the policy, are not effective, and pass out of the case. International Travelers' Association v. Branum, 109 Tex. 543, 212 S. W. 630; Eaton v. International Travelers' Association (Tex. Civ. App.) 136 S. W. 817; Southland Life Ins. Co. v. Hopkins (Tex. Civ. App.) 219 S. W. 254; Cooley's Briefs on Insurance (2d Ed.) vol. 2, pp. 1102, 1138, 1139, 1141, 1143.

The next question is one of greater difficulty, but after careful consideration we have concluded that the Court of Civil Appeals was correct in holding that death in this case was by accidental means within the terms of the contract. The policy was payable upon death caused by "external, violent and accidental means." The trial court found that the death was accidental, but denied recovery because of the failure to give notice of death. The Court of Civil Appeals likewise found that death was accidental within the terms of the policy, and, upon the conclusion that the notice of death was given as required, reversed and rendered the case in favor of the defendant in error. The occasion of the death was a dental operation—the pulling of a wisdom tooth and its related treatment. The cause of death was an infection which produced Ludwig's Angina, a result so extraordinary and rare, and so unrelated to the surgical act performed, that it must be regarded as accidental. The drawing of the tooth and treatment following were of course purposeful and not accidental, but the infection was not the necessary or usual result of this purposeful act. It was extraordinary, unusual, and very rare. The proper surgical act therefore must have been accompanied by something unexpected, unforeseen, and improbable. This unforeseen, unexpected, and improbable thing was the injection of the pythogenic organisms into the tissues. Just how they were injected the evidence does not show with mathematical precision; and in the nature of things this can never be done in any case. These organisms do not make their presence known by ordinary methods of detection. That they were introduced into the tissues at the time of and as a part of the surgical act of extracting the tooth and treating the lacerated tissues, seems to be a logical deduction from the facts proven. The tooth was extracted by Dr. Tipton, a regularly licensed and practicing dentist of the city of Dallas. At the time of the extraction he examined the patient and found that there was no swelling of the gums, no redness, and no pus. The tooth was not drawn because diseased, but because rather deeply embedded in the gum. The fact is that there was no infection until the flesh was lacerated by the drawing of the tooth. The infection then followed so closely that no one has attempted to name a time for the beginning of the infection different from that when the tooth was drawn. Dr. Lott, the surgeon who operated in an effort to save the life of Mr. Francis, in part testified:

"Ludwig's Angina is due to or is a reaction following some kind of an infection. I do not know the name or names of any other germs that would produce this disease other than staphylococcus and streptococcus. I do not know that I exactly traced the source of the infection but I got from him a history that indicated to my mind that he was suffering from the infection from or following the extraction of a tooth and naturally I thought that the cause of the infection was the extraction of the tooth. * * *

"Now as to whether Mr. Francis would have died when he did die I think that he died from the infection resulting from the pulling of the tooth. * * * I naturally assume that the infection following the extraction of his tooth was the cause of his death and toxemia or blood poison resulting in Ludwig's Angina."

Dr Yancey, one of the attending physicians, in part testified:

"I went to see Mr. Francis at St. Paul's Sanitarium and I got a history from him that he had been sick possibly for three or four days. * * * I made an examination of Mr. Francis' mouth, and when I had finished the examination I got from Mr. Francis a history of the fact that he had had a tooth extracted several days prior to that examination. * * *

"I am of the opinion that his condition was due to an infection caused from a tooth extraction, which was carried into the structure involved, which resulted in what medical science terms Ludwig's Angina. * * *

"It is my opinion that he would not have died unless the tooth had been pulled. It is my opinion now that the extraction of that tooth was the direct cause of that trouble. * * *

"This disease that I have testified about is known as Ludwig's Angina, and the nature of the disease is that it is an inflammation of the tissues beneath the jaw bone and about the floor and walls of the mouth, and it really follows or is the result of some infection. * * * I did not find any evidence of any source of infection other than where the tooth had been extracted that would have caused that condition."

The finding of the trial court as to the relationship between the extraction of the tooth and the infection is stated by plaintiff in error in its application as follows:

"In a trial before the court, the court found as a fact that on the 17th day of June, 1920, M. L. Francis had a wisdom tooth extracted by a dentist in the city of Dallas, and received as a result thereof an infection of strepto-cocci which caused blood poisoning to set in which resulted in his death on June 26, 1920. The trial court further found...