On Appellant's Motion for Rehearing. The motion for rehearing has been carefully considered, but this court is unconvinced of error in its original disposition of the cause; since our former opinion therein was filed, the San Antonio Court of Appeals, in Sovereign Camp v. De Martinez, 103 S.W.2d 995, 998, in what this court considers to be a sound interpretation, gives the same construction to appellant's *Page 856 "eye-witness" clause in section 57, paragraph 10, of its by-laws, as was given by this court, differentiating, in necessary effect, this case from that of Southern Travelers' Association v. Shattuck (Tex. Civ. App.)2 S.W.2d 568, in this language:
"A careful reading of the double indemnity rider with its general excepted risks on the face thereof, together with the quoted provision, leads us to the conclusion that the quoted by-law is not an excepted risk at all but a rule of evidence. The provision does not classify accidental deaths that will or will not be compensable, as did the provision in Southern Travelers' Association v. Shattuck, supra, but only provides payment for accidental deaths which may be established by one eyewitness other than the member. There may be an accidental death where there are twenty eyewitnesses under the quoted provision, but, if one of the number is not presented on the trial, no compensation is allowed. * * * If the provision had classified accidental deaths with an eyewitness other than insured, and accidental deaths without an eyewitness other than the insured, providing for the payment for the former, and denying payment for the latter, it would clearly come within the rule as announced in the Shattuck Case, supra, and we would be compelled to follow it. It seems clear to us that by the quoted by-law provision the association says: `We are dissatisfied with the rule of evidence which allows accidental injury to be proven by circumstantial evidence, notwithstanding the fact that it has been recognized as a just and salutary rule through the ages. Unless you are able to establish your case by one eye-witness testifying on the trial other than the member, there will be no liability.'
"Our statute, article 3713, provides: `The common law of England as practiced and understood shall, in its application to evidence, be followed and practiced by the courts of this State, so far as the same may not be inconsistent with this title or any other law.'
"We need cite no authority to demonstrate that under the common law of England a case could be made on circumstantial evidence which would be sufficient to sustain an action for accidental injury by gun-shot wounds, and of course it is not contended that we have any statute in Texas changing the common-law rule. Therefore it follows that the quoted provision of the by-laws of the association offends against this statute. Likewise we believe that it is an unreasonable by-law."
It is true that the facts in the cause before that court were not identical with those here existing, but that is immaterial as affects the court's view concerning the meaning of the by-law, upon which alone reliance is had in this cause.
The rehearing will be refused