56 S.W. 87 (Tex.Civ.App. 1900), Aetna Life Ins. Co. v. Hicks

Citation:56 S.W. 87, 23 Tex.Civ.App. 74
Opinion Judge:PLEASANTS, J.
Attorney:Harry P. Lowther and M. H. Townsend, for appellant. W. L. Adkins, for appellees.
Case Date:February 17, 1900
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 87

56 S.W. 87 (Tex.Civ.App. 1900)

23 Tex.Civ.App. 74

ÆNA LIFE INS. CO.

v.

HICKS ET AL. 1

Court of Civil Appeals of Texas

February 17, 1900

Appeal from district court, Colorado county; Munford Kennon, Judge.

Action by Ardella A. Hicks and another against the Ætna Life Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Harry P. Lowther and M. H. Townsend, for appellant.

W. L. Adkins, for appellees.

PLEASANTS, J.

Appellee Ardella A. Hicks, joined by her husband, Ben Hicks. sues as beneficiary of an accident insurance policy issued by appellant on the 16th day of June, 1897, to Ellis Hicks. The policy is in the ordinary form, and insures the said Ellis Hicks for a term of one year, in the sum of

Page 88

$3,000, against death resulting solely from bodily injuries received through external, violent, and accidental means, if death occurs within 90 days after such injuries are received. Said policy contains, among others, the following conditions: "This insurance does not cover accident nor death resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: Disease or bodily or mental infirmities; voluntary overexertion; voluntary exposure to unnecessary danger." Plaintiffs allege in their petition "that on the 19th day of April, 1898, the said Ellis Hicks, while in one of the passenger cars of the Southern Pacific Company provided for the use and transportation of passengers, and on his way over said company's road to Columbus, Tex., [23 Tex.Civ.App. 75] between San Antonio and Luling, stations on the road, in attempting to get a drink of water from the cooler in said car, was, by a sudden jerk or lurch of said car, thrown backward against the arm of the seat of the car in his rear, and, in an effort to retrieve his balance and regain his feet, wrenched and hurt his back, ruptured his stomach, and dislocated one of his kidneys, from which injuries the said Ellis C. Hicks, on the 22d day of April, 1898, died, in Columbus, Colorado county, Tex., his then place of residence." The defendant company answered by general demurrer, general denial, and by special plea setting forth that the penalty of 12 per cent. and the $500 attorney's fees claimed by plaintiffs were claimed under article 3071 of the Revised Statutes of this state, and that such article of the statute was in contravention of the fourteenth amendment of the constitution of the United States; and further pleaded that the death of said Ellis Hicks was not caused solely by the accident and injuries alleged in plaintiffs' petition, "but that said accident and death were the result, wholly and partly, and directly and indirectly, of disease and bodily infirmity, and resulted from voluntary overexertion and voluntary exposure to unnecessary danger, and occurred while said Hicks was afflicted with dangerous and deadly disease and with bodily infirmities, and while he was engaged in voluntary overexertion and voluntary exposure to unnecessary danger, in this, to wit: That, prior to said injury set forth and alleged in plaintiffs' petition, the said Ellis Hicks had been affected with typhoid fever, at San Marcos, Tex.; that by reason of said fever he had been confined to his bed, and physically was in a very weak and debilitated condition, and was under the care and charge of a physician; that on the 18th day of April, 1898, four days before his death, the said Hicks, contrary to the advice and under protest of his attending physician, and while still suffering from said disease, and before he had recovered therefrom, and while still physically weak and debilitated, arose from his sick bed in San Marcos, and proceeded to take the journey by rail from San Marcos to Columbus, Tex.; that said Hicks, as well as plaintiffs herein, was informed by his attending physician at San Marcos that he would run considerable risk, and that it would be dangerous to his life for said Hicks to undertake said journey in his then diseased and debilitated condition, and that he, as well as plaintiff, was advised by said attending physician not to undertake said journey, but to remain in San Marcos until he had fully recovered from said disease, but that said Hicks, notwithstanding that he was at the time suffering with said fever, and...

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