Travelers' Protective Ass'n v. Roth

• Decision Date: 20 February 1908
• Citation: 108 S.W. 1039
• Parties: TRAVELERS' PROTECTIVE ASS'N OF AMERICA v. ROTH.
• Court: Texas Court of Appeals

108 S.W. 1039

TRAVELERS' PROTECTIVE ASS'N OF AMERICA v. ROTH.

Court of Civil Appeals of Texas.

February 20, 1908.

Rehearing Denied April 2, 1908.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

Action by Jennie Roth against the Travelers' Protective Association of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Coke & Coke, for appellant. Capps & Canty, for appellee.

WILLSON, C. J.

The suit was on an accident insurance contract, and its trial resulted in a verdict and judgment in favor of appellee against appellant for the sum of $5,000 and interest.

The petition alleged that appellant was a corporation under the laws of Missouri, and was engaged in the business of insuring its members against accidental injuries; that the corporation was a mutual concern, and, for the purpose of raising a fund to pay its liabilities, charged its members certain fees and dues; that on January 16, 1895, appellant issued to Wm. H. Roth, petitioner's husband, its certain certificate of membership, numbered 10,540, whereby it insured said Roth against accidental injuries, and whereby it undertook and agreed in the event of said Roth's death during the continuance of his membership, and while he was in good standing, as the result of injuries occasioned by external, violent, and accidental means which alone should be the cause of his death, to pay to petitioner $5,000, provided such death should occur within three calendar months after the accident which caused it; and that on January 15, 1905, said Roth, while skating upon ice, fell upon the same and "struck his head with such force, or by extra and supreme exertion in falling causing such unusual pressure of blood on the brain, as to rupture a blood vessel, causing paralysis, from which the said Roth died thereafter, on, to wit, the 5th day of March, 1905." The answer contained a general denial of the truth of the allegations in the petition, and, among other matters which need not be specified, specially alleged that on the day Roth suffered the injury complained of he was not in good standing as a member of defendant, but that he then was and since January 1, 1905, had been in default in the payment of dues; that under the contract sued on dues amounting to $5.50 became due from and payable by him to defendant on January 1, 1905, and that such dues were not paid to defendant until January 16, 1905; and that the contract sued on provided that defendant should not be liable for any injury Roth might sustain while in default for dues. Section 1 of article 6 of appellant's constitution was as follows: "The annual dues of this association shall be $11.00, which shall be apportioned as follows: $1.50 to the Post, $1.50 to the State Division; and where there is no Post, $3.00 to the State Division, $6.00 to the benefit or indemnity fund, and $2.00 to the general expense fund. The above dues shall be due from, and paid by every member annually in advance, or in semiannual installments of $5.50 each in advance, on January 1st and July 1st without notice. Any member may pay said dues before they become due as aforesaid, but any member failing to pay said dues in advance on the day on which they become due, as aforesaid, to the secretary of the State Division of which he is a member, shall by such failure cease to be a member of this association, and he and his beneficiary shall cease to be entitled to any benefits under his benefit certificate. Should he, within thirty days after such default, pay such dues, he may be reinstated, and receive a new card of membership, but he shall receive no insurance benefits of any kind under his benefit certificate that may have accrued between the date of said default and the date of his reinstatement; and, if injured during the thirty or less days of his delinquency, the delinquent member shall receive no indemnity therefor, nor shall his beneficiaries receive anything should he be killed during such period of delinquency; but after thirty days after such default, he can only again become a member of this association by making formal application in the manner provided for new members." The evidence was uncontroverted that Roth suffered the fall on ice, alleged to have caused his death, on the afternoon of January 15, 1905, and that he died on March 5, 1905; that at the time he fell on the ice the semiannual installment of dues due by him on January 1, 1905, had not been paid, unless the deposit by him in the post office at Henryetta, Ind. T., some time prior to 7 o'clock on the morning of January 15, 1905, of his check for $5.50 in favor of appellant's secretary and treasurer at Dallas, in an envelope properly stamped and addressed to said secretary and treasurer, to cover same, operated as a payment at the time of such deposit of such check. The record shows that the check so deposited was received by appellant's secretary and treasurer at Dallas on the morning of January 16, 1905.

Appellant contends that the effect of the evidence recited was to show that Roth was in default for his dues at the time he fell on the ice, that he therefore was not then in good standing as a member of the association, and that, because it so appeared from the evidence that he was not a member in good standing, the court, as requested by it, should have peremptorily instructed the jury to return a verdict in its favor. Refusing to so instruct the jury, appellant contends that the court erred further in instructing the jury, on certain conditions which need not be here stated, as they do not affect the questions to be now discussed, to return a verdict for appellee, if they believed that on January 15, 1905, Roth accidentally fell upon the ice while skating, and thereby suffered an injury to his head, which alone caused his death on March 5, 1905, and if they further believed from the evidence that "at the time said Roth was so killed, if you believe he was so killed, he was a member of defendant association in good standing." The evidence showing that the injury claimed to have resulted in Roth's death on March 5, 1905, was suffered on January 15, 1905, it is insisted that in failing to instruct the jury whether they must find Roth to have been in good standing as a member of the association on January 15, 1905, when he suffered the fall, or on March 5, 1905, when he died, and in instructing them merely that they must find that he was in good standing at the time he was "so killed," the charge was so "ambiguous, confusing, and misleading" as to make it impossible for the jury to know therefrom at what time they must as a basis for a verdict find Roth to have been in good standing as a member of the association. The evidence was uncontroverted that Roth was a member in good standing of the association at the time he died. If the fact that he was such a member entitled appellee to recover on proof that his death was caused by the fall alone, in the particular complained of the charge would not be prejudicial to appellant's right, and it should not be heard to complain of it. But, if appellee was not entitled to recover unless Roth was such a member at the time he fell on the ice, we think the charge would be subject to the criticism urged to it, notwithstanding the answer to that criticism made by appellee, that the language of the contract was neither ambiguous, scientific, nor technical, and that the charge in the particular objected to followed its language. The contract, as evidenced by the quotation hereinbefore made from appellant's constitution, declared that a member who failed to pay his semiannual dues "in advance on the day on which they become due, * * * shall by such failure cease to be a member of this association, and he and his beneficiary shall cease to be entitled to any benefit under his certificate." And it further declares: "Should he within thirty days after such default pay such dues, he may be reinstated, * * * but he shall receive no insurance benefits of any kind under his benefit certificate that may have accrued between the date of said default and the date of his reinstatement; and, if injured during the thirty or less days of his delinquency, the delinquent member shall receive no indemnity therefor, nor shall his beneficiaries receive anything, should he be killed during such period of delinquency." Appellee's contention was that, if Roth at the time he suffered the fall was not in good standing as a member of the association, she nevertheless was entitled to recover because he was not "killed" until March 5th, when he was in good standing. In this attitude of the case, although the language of the contract was neither technical nor scientific, we think it became the duty of the court to construe it and to determine whether rightly construed it would permit a recovery on proof that Roth was in good standing at the date of his death, notwithstanding he may have been in default at the time he fell on the ice; and, having construed its meaning with reference to this feature of the case, it was the further duty of the court to instruct the jury in accordance with such construction. A charge which merely instructed the jury to find that Roth at the time he was "killed" was a member of the association in good standing it seems to us, in view of the evidence, fell short of instructing them as to the legal effect of the contract. It doubtless is true that the word "killed" in popular language is more often used as referring to the time of the act producing death than to the time of the death produced by the act. Martin v. Copiah County, 71 Miss. 407, 15 South. 73; Newton County v. Doolittle, 72 Miss. 929, 18 South. 451. The fact that when used it does not invariably have reference to the time an injury resulting in death was received would require the court in construing the contract to give to the words the meaning most nearly conforming to the intent of the parties to it as gathered...