Pan Am. Life Ins. Co. v. Andrews, A-7335

Decision Date23 November 1960
Docket NumberNo. A-7335,A-7335
Citation161 Tex. 391,340 S.W.2d 787,93 A.L.R.2d 560
Parties, 93 A.L.R.2d 560 PAN AMERICAN LIFE INSURANCE COMFANY et al., Petitioners, v. Mrs. Elizabeth Cotton ANDREWS et vir, Respondents.
CourtTexas Supreme Court

Vinson, Elkins, Weems & Searls, Houston, by Jeff Crane, Houston, for petitioner.

Kennedy & Granberry, Crockett, for respondent.

CULVER, Justice.

The petitioners' motion for rehearing is granted. Our opinion handed down in this case on October 5, 1960, is hereby withdrawn and the following substituted therefor.

Mrs. Elizabeth Cotton Andrews as guardian of a minor beneficiary, sued Pan American Life Insurance Company and Continental Assurance Company to recover double indemnity or accidental death benefits as provided in the policies issued by the respective companies on the life of Harrington G. Simmons. The suits having been consolidated, trial was before the Court without the aid of a jury and judgment was rendered for plaintiff. The Court of Civil Appeals has affirmed. 323 S.W.2d 287.

The double indemnity provision of the Pan American policy reads:

'On receipt of due proof that the death of the Insured occurred in consequence of bodily injuries effected solely through external, violent and accidental means, of which (except in the case of drowning or of internal injuries revealed by an autopsy) there is a visible contusion or wound on the body, and that such death occurred within sixty days after such injury was sustained, and as a direct result thereof, independently of any other cause, * * * the Company will, upon surrender of the policy, in lieu of all other benefits under this policy, pay to the beneficiary or beneficiaries under this policy, subject to the change of beneficiary clause, Double The Face Amount Of The Policy.'

The Continental provision is substantially to the same effect as follows:

'Upon receipt at its Home Office in Chicago, Illinois, of due proof that the death of the Insured has resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means and that said death occurred while said policy and this supplementary contract are in full force and within ninety (90) days and from the date of the accident causing such injuries, it will pay to the beneficiary designated in said policy a sum equal to the face amount of the policy, in addition to the amount otherwise payable under said policy.

'This supplementary contract does not cover death resulting from:

'(a) Bodily injuries of which there is no visible contusion or wound on the exterior of the body, except in case of drowning or internal injuries revealed by autopsy; * * *.'

We conclude that there is no evidence that the insured died in consequence of bodily injuries effected solely through external, violent and accidental means. The judgments of the trial court and the Court of Civil Appeals must be reversed and here rendered in favor of petitioners.

Early in

the morning of December 4, 1953, a fire occurred in the building where the insured had his office. He was observed watching the fire and seemed to be nervous and upset.' On the following day after the fire, it was noticed that he walked with a limp. On the same day insured called on his family physician, Dr. Dean, who treated him for a low-grade sinus condition. He told the doctor with considerable emotion that the fire was very serious so far as he was concerned, that it had him 'in a jam' because his records were practically destroyed and it was near the end of the year. Mrs. Andrews, the respondent, testified that she saw the insured on the afternoon of the day of the fire at her home. She observed that he was favoring his right foot. On inquiry he told her that he thought he must have been hurt at the fire. He had a headache and was rubbing his head and she gave him an aspirin. She had never noticed him rubbing his head before and for that reason made inquiry.

On Saturday morning following the fire he appeared to be still very nervous and upset and borrowed field glasses in an effort to see into his office. On the following Sunday insured made several trips into his office, entering from the top from an adjoining building and was observed carrying out wire baskets that contained his papers and files. On Monday following while someone was helping him move a desk into another office he dropped the end he was carrying and complained that his arm and leg had been giving him some trouble during the last day or two. Thereafter he developed some loss of sensation in his extremities and his condition progressively deteriorated. A neurologist examined him on December 22nd and hospitalized him on the 25th. On January 4th a neurosurgeon performed a brain operation and insured died January 7th, some 34 days after the fire.

The Court of Civil Appeals' opinion quotes much of the medical testimony in question and answer form. Dr. Dean was of the opinion that 'the thing that set off the chain of reaction that produced this condition was probably 'psychic trauma", and that 'the fire produced the reaction in his mind, which is capable of producing damage to the cells tissue not only in the brain, but other organs.' Dr. Dorsey was of the opinion that there was a reasonable probability that the psychic trauma suffered by the insured as a result of the fire was the cause of the thrombosis.

The insured was not in the building at the time of the fire. He viewed it from a safe distance. He was in no personal danger and suffered no fright. Regarding the evidence most favorable to the respondent, it must be conceded that the fire or the act of viewing the fire was but a remote cause of the insured's death. The psychic trauma was brought about by the anticipation on the part of the insured that records of personal property located in the building were being damaged or destroyed and by the natural concern over the loss of the contents of his office.

These policies by their terms expressly exclude from coverage those bodily injuries where the external and violent means fail to exert sufficient force upon the body so as to produce outwardly visible evidence thereof except where that force has otherwise left its mark within the body and that revealed by an autopsy. If it be said that the sight of the fire produced a nervous tension in the mind of the insured and that tension in turn resulted in psychic trauma that condition was not revealed by an autopsy. The autopsy only showed the presence of a thrombosis which the doctor testified was probably caused by the psychic trauma.

We are not here concerned with the distinction made in some decisions between accidental means and accidental death, as discussed in United States Mutual Accident Ass'n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60. In that case Barry was allowed recovery for injuries received while jumping from a platform. Although the jumping was intentional on Barry's part the injury was accidental within the meaning of the policy.

Respondent cites three cases, Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618; Gulf, Colorado & Santa Fe Ry. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 47 L.R.A. 325; Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546, for the proposition that where physical injury results from fright or other mental shock caused by the wrongful act of another, the injured party is entitled to recover his damages and seeks to apply that doctrine to the facts of this case. We do not at all disagree with that rule. We do not agree, however, that this rule applicable in tort law is to be followed in determining the rights of parties under contractual provisions. We have found no case nor have we been cited to one that allows the terms of these policies to be construed as contended for by respondent.

Neither the fire nor the view of the fire can be said to be 'accidental, external and violent,' so far as insured is concerned any more that if he had read an account of the fire in the newspaper a week later or if he had been told of the fire and the destruction of his records during his absence from the city. Surely, under a reasonable interpretation of the contract it could not be said in those events that the insured had suffered bodily injuries as a result of external, violent and accidental means.

In a recision, United American Ins. Co. v. Selby, Tex., 338 S.W.2d 160, 164, in enforcing a contract of insurance according to its terms we pointed out that 'contracts of insurance are to be construed as other contracts, and * * * all parts of the contract are to be taken together.'

'We recognize the general rule that contracts of insurance are to be strictly construed in favor of the insured, but this does not affect the further general rule that contracts of insurance are to be construed as other contracts, and that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties.'

The term 'external and violent means' connotes some physical force or impact applied to the body of the insured even though it be slight.

'The term 'violent,' in such provision, signifies merely that a physical force, however slight, is efficient in producing the injury.' 45 C.J.S. Insurance § 754, p. 784.

At the beginning of this section the statement is made:

'A provision of the policy, covering death or bodily injury which results solely by or through 'external, violent, and accidental means,' applies only where the elements of force and accident concur in effecting the injury, unless the clause is in the disjunctive, as 'external, violent, or accidental' means, in which case injury from external and violent means alone is sufficient. If, however, the cause of the injury or death can be shown to be due to accidental or unnatural means, this imports that such injury or death is due to external and...

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