I am constrained to dissent from the opinion of the majority of this court affirming the judgment of the trial court.
There is no conflict in the testimony, all of which shows that the deceased insured, while on a boat party down the Houston Ship Channel, with a number of friends, became intoxicated and was drowned by falling, jumping, or being pushed or thrown overboard. No one saw how the deceased went overboard, and no one saw him in the act of drowning. After the boat had returned from the trip down the channel, it was discovered that Ebelio Martinez, the insured, was missing, and a complete search was made for the deceased. Approximately four days from the date of the boat party a body was found near Brady's Island afloat in the channel. This body was identified as being that of Ebelio Martinez. With this addition, the facts are sufficiently stated in the majority opinion.
There is no real difference in the facts of this case and the facts in the case of Southern Travelers' Ass'n v. Shattuck (Tex. Civ. App.)2 S.W.2d 568, and the other cases cited by appellant. It seems to me that the distinction drawn by counsel for appellee and the authorities cited by them which the majority opinion approves and follows is an exhibition of mental gymnastics "that would a hair divide; `twixt its northwest and its southeast side."
It may be a deficiency in his powers of imagination, but the argument of the appellee that the provisions of the insurance certificate and the by-laws of the association pleaded by appellant as limiting its liability, "are invalid and void, being against public policy in attempting to control and modify the procedure of courts, to make the rules of evidence, and divest the courts of their jurisdiction," find no lodgment in the mind of the writer.
It seems clear to the writer, that whatever may be the rule in other jurisdictions, the Shattuck Case, supra, in which a writ of error was denied by our Supreme Court, is conclusive against appellees' contention.
Having reached this conclusion, I respectfully dissent from the opinion of the majority affirming the judgment, which, in my opinion, should be reversed and judgment here rendered in favor of appellant.