Kennedy v. Ætna Life Ins. Co.

• Decision Date: 28 February 1903
• Citation: 72 S.W. 602
• Parties: KENNEDY v. &#198;TNA LIFE INS. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 602

KENNEDY v. ÆTNA LIFE INS. CO.^*

Court of Civil Appeals of Texas.

February 28, 1903.

Appeal from district court, Dallas county; Thos. F. Nash, Judge.

Action by J. R. Kennedy against the Ætna Life Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Crane, Greer & Wharton, for appellant. Harry P. Lawther, for appellee.

RAINEY, C. J.

The following statement, taken from the brief of appellant, shows the nature and result of the suit in the lower court, to wit:

"This was a suit by J. R. Kennedy, appellant, in the court below, against the defendant company, in which it was alleged, substantially, that the defendant company was a corporation with power to issue life insurance policies, etc.; that the plaintiff was a resident of Ellis county, Texas; that the defendant company had issued an accident policy on the life of James Kennedy on the 14th day of June, 1897, for a valuable consideration, and that it was from time to time renewed, the last renewal being on the 11th of June, 1899, and that by its renewal it insured the said James Kennedy in the sum of $3,000 against death by accident until the 14th day of June, 1900. The terms of the policy were set out with much particularity. It was further alleged that he died on the 17th of November, 1899, by accidentally taking an overdose of digitalis, a poisonous medicine, instead of a prescription left by his physician, which was not poisonous. It was alleged that there was no necessity for administration, etc., and that he died intestate, and that the plaintiff was his only brother; that the father and mother of the insured were both dead, and that the plaintiff was his only heir. The policy was attached to the petition of plaintiff, and it had a printed clause on the back thereof to the effect that `this insurance does not cover injuries of which there is no visible mark on the body, * * * nor suicides, sane or insane, nor accident, nor death, nor loss of limb, nor sight, nor disability resulting wholly or partially, directly or indirectly, from any of the following causes: * * * Intoxication or narcotics, voluntary or involuntary taking poison, or contact with poisonous substances, or inhaling any gas or vapor.' The defendant company answered, among other things, as follows, by special exception No. 2: `That because it appeared from the policy sued on, attached to the petition, that the insurance does not cover an accident or death, nor disability, resulting wholly or partly, directly or indirectly, from voluntary or involuntary taking poison, or contact with poisonous substances; and because it further appeared from the petition policy that said Kennedy, on the 17th of November, 1899, accidentally killed himself by accidentally taking an overdose of digitalis, a poisonous medicine, instead of a prescription left by his physician.' A general demurrer was filed that the original petition was insufficient in law. On September 27, 1902, the case came on on demurrer, and the court sustained the second special exception and the general demurrer above stated, and entered a judgment dismissing plaintiff's petition, to which judgment the plaintiff excepted, and gave notice of appeal to this court."

The sole question for solution arises upon the proper construction of the...