Sovereign Camp, W. O. W. v. Martinez

• Decision Date: 22 March 1939
• Docket Number: No. 2225-7312.,2225-7312.
• Citation: 126 S.W.2d 10
• Parties: SOVEREIGN CAMP, W. O. W., v. MARTINEZ et ux.
• Court: Texas Supreme Court

Page 10

126 S.W.2d 10

SOVEREIGN CAMP, W. O. W., v. MARTINEZ et ux.

No. 2225-7312.

Commission of Appeals of Texas, Section A.

March 22, 1939.

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

Action by Monico Martinez and wife against the Sovereign Camp, W. O. W., to recover alleged balance due under a beneficiary certificate. To review a judgment affirming judgment for the plaintiffs, 106 S.W.2d 852, the defendant brings error.

Affirmed.

Battaile, Burr & Holliday, of Houston, for plaintiff in error.

Burris & Benton, of Houston, for defendant in error.

HARVEY, Commissioner.

This suit was instituted in the District Court of Harris County by the defendants in error, Monico Martinez and his wife, against the plaintiff in error, the Sovereign Camp of the Woodmen of the World (a fraternal beneficiary association, duly incorporated). The purpose of the suit is the recovery of the sum of $1,000 alleged to be the balance due the defendants in error, as beneficiaries, under a beneficiary certificate issued by the Association to their son, Ebelio Martinez, now deceased. The recovery of penalties, interest and attorney's fees is also sought. The case was tried before the court without a jury, resulting in a judgment for the defendants in error for the sums sued for. The Court of Civil Appeals at Galveston affirmed the judgment of the trial court. 106 S.W.2d 852. The Association was granted the writ of error. While the application contains a number of assignments of error, they present but a single question of law, namely, whether or not the by-law provision hereinafter set forth furnishes a valid defense against the recovery sought.

The certificate provided for indemnity in the sum of $1,000 in case of death of Ebelio. The latter was drowned while the certificate was in force and effect. The above sum of $1,000 has been duly paid and no controversy arises in that respect. Attached to the certificate, as a rider, the following clause appears:

"Supplementary Agreement attached to and made a part of and subject to the terms and conditions of a certificate of membership in the Sovereign Camp of the Woodmen of the World No. L-942034-L on the life of E. Martinez, the member.

"Double-Indemnity Benefit:

"The Association will pay Two Thousand Dollars, less any indebtedness to the Association hereon, in lieu of the face amount of said certificate, upon receipt of due proof that the death of the member resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent, and accidental means and within sixty days after sustaining such injury. This Double Indemnity Benefit shall not apply if the member's death resulted from self-destruction, whether sane or insane; from any violation of the law by the member; from military or naval service in time of war; from riot, insurrection, or war, or any act incident thereto; from engaging, as a passenger or otherwise, in submarine or aeronautic operations; from participating in professional automobile racing; from physical or mental infirmity; or directly or indirectly from illness or disease of any kind. The Association shall have the right and opportunity to make an autopsy."

There was no eyewitness to the drowning of Ebelio. No testimony of an eyewitness to show that the drowning was accidental was introduced at the trial. The trial court found that the drowning was accidental and this finding is based entirely on circumstantial evidence. The judgment was rendered for the additional sum of $1,000 claimed by the defendants in error under the provisions of the double indemnity clause set out above. Section 57 of the by-laws of the Association, which constitutes a part of the certificate in all respects as if same were embodied therein, provides, so far as presently material, as follows:

"Sec. 57. The following conditions, except as otherwise provided in the certificate, shall apply to every beneficiary, and shall be binding on both the member and the beneficiary: * * *

"Tenth. The Association shall not be liable for the payment of double indemnity under any beneficiary certificate providing for double indemnity in case of the death of the member by accident, where it is claimed that death resulted from accidental drowning, cutting, poisoning, hanging, discharge of fire arms or shooting, unless the fact that such drowning, cutting, poisoning, hanging, discharge of fire arms or shooting was accidental shall be established by the testimony of at least one person other than the member, who was an eye witness to such drowning, cutting, poisoning, hanging, discharge of fire arms or shooting."

The...