Robinson v. Ætna Life Ins. Co.

• Decision Date: 04 November 1925
• Docket Number: (No. 546-4239.)
• Parties: ROBINSON v. ÆTNA LIFE INS. CO.
• Court: Texas Supreme Court

276 S.W. 900

ROBINSON v. ÆTNA LIFE INS. CO.

(No. 546-4239.)

Commission of Appeals of Texas, Section B.

November 4, 1925.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Mrs. Mary Ellen Robinson against the Ætna Life Insurance Company. Judgment for plaintiff was reversed in 262 S. W. 118, and plaintiff brings error. Modified and affirmed.

Lewis, Campbell & Nicholson, of Houston (T. H. Cody and Gavin & Ulmer, both of Houston, of counsel), for plaintiff in error.

Baker, Botts, Parker & Garwood, of Houston (Y. D. Mathes and E. F. Smith, both of Houston, of counsel), for defendant in error.

SPEER, J.

Mary Ellen Robinson sued the Ætna Life Insurance Company upon an accident policy insuring the life of her husband, Charles W. Robinson, and recovered in the trial court judgment for $7,500, the amount of the policy contract, $337.50, interest, $900 statutory penalty, and $2,500 attorneys' fees. Upon appeal to the Court of Civil Appeals by the defendant, that court reversed the judgment of the trial court, and remanded the cause (262 S. W. 118), and the points thus decided are before us upon the writ of error.

The policy under consideration contained the usual clause insuring against loss as therein defined, "resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means." The court's charge, as originally drawn and submitted, contained no definition of the words "accident" and "accidental" in the connection in which they were used in the policy and the charge, but after the counsel for the plaintiff had made his opening argument and one of the counsel for the defendant had spoken, the court did prepare and submit the following:

"You are further charged in this case that the terms `accident' and `accidental,' as used in the charge and special issues submitted to you by the court, are employed in their ordinary and popular sense, as meaning happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected; an event which takes place without the foresight or expectation of the person acted upon."

The defendant company requested the court to give the following definition:

"The term, `effected solely through external, violent and accidental means,' means that the element of accident must consist in that which produces the injury rather than in the mere fact that an injury occurs."

This was refused. In fact, the request was refused before the court gave the instruction defining the terms "accident" and "accidental" already referred to. The Court of Civil Appeals held that this requested charge, containing the definition of the term "accidental means," should have been given, and cites as authority therefor Bryant v. Continental Casualty Co., 107 Tex 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, from the opinion in which the language of the requested instruction appears to have been taken. It appears also that the definition actually given by the court was taken from Mutual Accident Association v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60, which Chief Justice Phillips in the Bryant Case declares to be "the best definition of the term in the books." While it is true the requested instruction included in the definition the word "means," and the definition as given expressly defined only the words "accident" and "accidental," still the necessity for a definition lay in the use of the words "accident" and "accidental" rather than "means," and a definition of those words necessarily would be associated in the minds of the jury with their use in connection with the word "means." In truth, since the word "accidental" occurs in special issue No. 1 in connection with the word "means," and since the word "accidentally" occurs in special issue No. 2 without such association, the court's determination to define those words separately was not an improper one, and, his definition being accurate, the defendant received all it was entitled to in the matter of defining the term "accidental means." Furthermore, it is not altogether clear under the facts of this case the requested definition was not improper as being argumentative and on the weight of the evidence. While it is true that the mere unexplained death of the deceased could not be considered as evidence of death through accidental means, still, in the light of the circumstances surrounding his death, the visible signs of external injury not otherwise explained, the jury might find from the nature of the injury under all the circumstances that it occurred solely through accidental means. However this may be, we are content to rest our ruling upon the sufficiency of the definition given by the court, and in reversing upon this point the Court of Civil Appeals erred.

The Court of Civil Appeals further ordered a reversal because of the refusal to submit the defendant's requested issue upon apoplexy, to wit, "Did apoplexy cause or contribute directly to the death of Charles W. Robinson?"

We think this holding was correct. Under the issues made by the pleadings the burden was upon the plaintiff to show that the death of Charles W. Robinson resulted directly and...