Ætna Life Ins. Co. v. Robinson

• Decision Date: 14 May 1924
• Docket Number: (No. 1109.)
• Citation: 262 S.W. 118
• Parties: ÆTNA LIFE INS. CO. v. ROBINSON.
• Court: Texas Court of Appeals

262 S.W. 118

ÆTNA LIFE INS. CO. v. ROBINSON.

(No. 1109.)

Court of Civil Appeals of Texas. Beaumont.

May 14, 1924.

Rehearing Denied May 21, 1924.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Action by Mrs. Mary Ellen Robinson against the Ætna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Baker, Botts, Parker & Garwood, of Houston, for appellant.

B. F. Louis, of Houston, for appellee.

WALKER, J.

On the 19th day of February, 1912, appellant issued to Charles William Robinson, the husband of appellee, an accident policy in the principal sum of $7,500. Mr. Robinson died on the 23d day of January, 1922, with the policy in full force and effect. On appellant's refusal to pay the amount claimed under the accident features of the policy, appellee instituted this suit, and was awarded judgment for $7,500, the amount of the policy contract, $337.50 interest, $900 statutory penalty, and $2,500 attorney's fees. There was testimony on all the circumstances embodied by appellant in the following hypothetical question:

"I want to ask you a hypothetical question, and don't answer it until plaintiff's counsel has the opportunity to object: Assuming that a white man between 69 and 71 years of age, engaged in the rice or grain brokerage business, has a wife and several grown children, who had not had any illness in the last 15 or 20 years sufficient to cause him to take to his bed or to call a physician for that illness, with the exception of an attack of neuralgia which was supposed to have been brought on by some trouble with his teeth, and which ceased to disturb him after the dentist worked on his teeth, who had a dizzy spell, or who became dizzy and staggered, about a year before his death, after drinking a full goblet of wine in a room in his home, and immediately thereafter going into a room where there was a heater with a fire in it, and was then taken or assisted upstairs and to bed, got up the next morning without evidencing any apparent ill effects, who drank wine occasionally at home, but not to excess, who sometimes walked to his work and sometimes rode in a jitney, and sometimes in a street car; assuming that this old man left his home out on Travis street at about 9 o'clock on the morning of January 23d, of this year, after having eaten his breakfast as usual, and after having gone into the yard with his wife and procured a rose, or other flower, and started walking south on Travis street, turning at the first corner, which was Hadley, and going westward, and was not seen any more, so far as known, until about 20 to 40 minutes later, at which time he was found lying on his back in Travis street with his feet against the curb, or approximately against the curb, one knee slightly raised, grasping a dollar bill, or some other similar object, in one hand, with a cane lying near him, and who, when picked up, was carried to the hospital in an automobile, where he died about the time of arrival, which was about 10 minutes after he was picked up; assuming these things, and assuming, further, that there was a cut on the back of his head just to the right of the occipital bone, from 3/4 to 1½ inches in length, or possibly 2, which reached through the scalp to the bone, so that a person putting his finger into the cut could feel the skull, but could not, so far as he could tell, discover any crushing or breaking of the skull perceptible to the feel of his finger; and assuming, further, that there was a considerable amount of blood at the place in the street where this man's head was, the street at that place being paved with either wooden block or brick (there is some difference about that), and that no one saw him fall and no one there actually observed whether he fell, or how he got into the position in which he was found; we do not know what he had for breakfast or for dinner on the preceding evening; and assuming, further, when the undertaker went to embalm the body, some slight amount of embalming fluid oozed out from the cut in the back of his head, just mentioned, which oozing was between the skull and the outer covering, skin covering; assuming that the body was embalmed and buried at about 11 o'clock a. m. or 12 o'clock on the day following this, that is, about 26 hours after death; and assuming, further, that the deceased having some insurance, commonly called accident insurance, and no autopsy or post mortem examination was had; assuming that the man did not speak from the time he was found until he died — whatever number of minutes that was. * * *"

The policy insured the said Charles William Robinson "against loss as herein defined resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental means" (excluding suicide, which is not involved in this case), and said contract provided further that —

"* * * If such injury alone result within ninety days from the date of accident in any of the losses described below, the company will pay the sum specified opposite such loss."

The contract further provided:

"The company shall have the right and opportunity to examine the body of the assured when and so often as it requires in the case of injury, and also have the right and opportunity to make an autopsy to determine the cause of death when it so requires."

Said contract further provides in paragraph E, part XIII:

"* * * A failure to comply with any of the requirements contained herein shall invalidate all claims under this policy."

The following special issues were submitted to the jury, and answered as indicated:

"Special Issue No. 1. Was, or was not, the death of Charles W. Robinson, the insured under the policy of insurance sued on herein, due directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means? You will answer, `It was,' or, `It was not,' as the case may be." Answer: "It was."

"Special Issue No. 2. Was, or was not, the death of Charles W. Robinson, the insured, caused by his falling accidentally and striking the back of his head upon the edge of the curb or some unknown substance upon the street, causing the cut upon the back of his head? You will answer, `it was,' or, `It was not,' as the case may be." Answer: "It was."

"Special Issue No. 3. What, under all the facts and circumstances in this case, would be a reasonable attorney fee to be allowed plaintiff for the prosecution of this suit? You will answer by stating the amount." Answer: "$2,500.00."

"Special Issue No. 4. Was, or was not, the death of Charles W. Robinson, the insured, caused by a blow on the back of his head which caused the wound or cut thereon as shown by the evidence? You will answer, `It was,' or, `It was not,' as the case may be." Answer: "It was."

Opinion.

Appellant, in connection with a proper charge on the burden of proof, requested the court to submit to the jury the following definition of the term "effected solely through external means":

"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 charge was refused, and in lieu thereof the court submitted to the jury the following definitions of the terms "accidental" and "accident":

"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."

Appellant's definition of the term "accidental means" should have been given. Our Supreme Court, following the Supreme Court of the United States, draws a distinction between death by "accidental means" and an "accidental death." In Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, it was said:

"The word `means' is employed in the policy in the sense of `cause'; the phrase `due to accidental means' is one of qualification; and the purpose of its use in the ordinary accident policy is to limit the liability of the insurer to injuries effected by an accidental cause, as distinguished from those which are merely accidental in their result. It is generally recognized, as it should be, that where a man undertakes to do a certain thing by a particular means, and the result of his act is such as follows, in not an unusual or unexpected way, from the means voluntarily used, it cannot be said to be due to an accidental cause, though, in the sense that it was not intended, an accidental result is the consequence. In the numerous adjudicated cases upon the subject, therefore, it is determined that where by the terms of the contract the risk insured against is an injury effected by `accidental means,' the element of accident must consist in that which produces the injury, rather than in the mere fact that an injury occurs."

And, again, it was said, in Pledger v. Business Men's Accident Ass'n (Tex. Com. App.) 228 S. W. 110:

"* * * Death is accidental if the result is an accident, whether due to accidental means or not. * * * The result is due to accidental means, if in the act preceding the injury something unforeseen, unusual and unexpected occurs which produces the result. * * * Death caused by accidental means is an accidental death; but an accidental death may or may not be the result of accidental means."

On the facts of this case, if Robinson slipped and fell upon the pavement, inflicting the injuries from which he died, his death would have been occasioned by "accidental means"; but if because of a fainting spell, or some other bodily infirmity, he was...