McDonald v. Ætna Life Ins. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: McDonald v. Ætna Life Ins. Co., 187 S.W. 1005 (Tex. App. 1916)
• Decision Date: 25 May 1916
• Docket Number: (No. 7182.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: McDONALD v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

187 S.W. 1005

McDONALD v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

(No. 7182.)^*

Court of Civil Appeals of Texas. Galveston.

May 25, 1916.

Rehearing Denied June 29, 1916.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Action by Mrs. Minnie E. McDonald against the Ætna Life Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff appeals. Affirmed.

King & Hughes, of Galveston, Harry Tom King, of Abilene, and H. C. Hughes and R. L. Pillow, Jr., both of Galveston, for appellant. Baker, Botts, Parker & Garwood and Jno. C. Townes, Jr., all of Houston, and W. T. Armstrong, of Galveston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellant against the appellee to recover upon two insurance policies for the sum of $8,750 each issued by appellee, and by which it insured appellee's deceased husband, John C. McDonald, against death by accidental means in the sums named in said policies.

The plaintiff's original petition set up the policies and set up the death of the insured on the 8th day of December, 1914, by accidental means, to wit, from gas asphyxiation. Said petition gave credit for one-half of the principal sum paid to the plaintiff, and asked judgment for the balance, $8,750, together with 12 per cent. penalties and an attorney's fee of $2,500.

Defendant in its first amended original answer admitted the issuance of the policies and the death of the insured, but denied the cause of the death, alleging that same was not due to an accident, but to natural causes. It also set up the insurer's right to an autopsy, the failure of the plaintiff to permit an autopsy, and the forfeiture of the policies thereby, and further alleged, among other defenses, that they had paid $8,750 in full and final settlement of all claims due under the policies as a compromise thereof, and that there was nothing due from the defendant to the plaintiff on account of said settlement and adjustment, attacking a release to the answer which recited full settlement of the two policies for the sum of $8,750, said release being dated January 4, 1915, and in that connection set up that the negotiations leading up to the settlement were carried on by P. B. Eyler, representing the defendant, and J. W. Carson and Capt. Robertson, representing the plaintiff; that said parties were agents of the plaintiff authorized to represent her in said negotiations; that the agent of the defendant, after investigating the facts surrounding the death of Mr. McDonald, reached the conviction that he did not die from accidental causes, and urged said defense prior to the making of said settlement in good faith believing it to be a substantial defense or a doubtful question; that a dispute or controversy as to the liability of the defendant company was raised; and that said controversy was bona fide, and was maintained in good faith upon the part of said Eyler and the said defendant. They also set up the intemperance of the deceased.

Plaintiff by first supplemental petition set up the facts in regard to the autopsy, which, however, was not made an issue in the trial of the case. She denied that there was any good faith in the contention that her husband had not died from accidental means or that said defense was bona fide or set up in good faith. She further denied that Robertson and Carson were her agents, and stated that they were not directed or appointed by her to make any settlement with the insurance company; that she was never at any time informed as to what took place between Robertson, Carson, and Eyler, and could not and did not ratify the transaction between them and Eyler. She admitted that she signed a release, but set up that the amount due her was a liquidated demand, and that the insurance company was at the time of said settlement and at all times due her $17,500, and that the $8,750 was simply a payment upon same, and that there was no consideration for said release.

By first supplemental answer defendant denied the matters and things set up in the foregoing pleadings of the plaintiff, and especially denied that the plaintiff was without knowledge of the negotiations between Eyler, representing the defendant, and Mr. Robertson and Mr. Carson.

The cause was submitted to a jury in the court below upon the following special issues:

"(1) Did John C. McDonald die from gas asphyxiation? Answer `Yes' or `No.'

"If you answer the foregoing interrogatory `No,' you need not answer further.

"(2) Was there any good-faith controversy between the parties as to the cause of his death at the time of settlement? Answer `Yes' or `No.'

"(3) At the time the settlement was made, or during the negotiations with Mr. Robertson or Mr. Carson leading up to same, was the contention of Mr. Eyler to the effect that Mr. McDonald's death was not due to gas asphyxiation made by the said Eyler in good faith in the belief that his contention was well founded or in the belief that it presented a doubtful question? Answer `Yes' or `No.'

"If you answer either of the second or third interrogatories `Yes,' you need answer no further."

The jury answered "Yes" to first and second questions, and upon the return of such verdict judgment was rendered in favor of the defendant.

The following facts were shown by the evidence:

On the night of December 8, 1914 (while the policies in question were in force and effect), John C. McDonald died suddenly, in the bathroom of his home, in Galveston, Tex. There was no one present when Mr. McDonald was stricken, and he was in an unconscious and dying condition when discovered by members of the household.

J. A. Robertson, a relative of Mrs. Minnie E. McDonald, the widow, prepared proofs of death for her signature, and attended to transmitting them to the company. The proofs of death showed the contention of Mrs. McDonald to be that her husband had been accidently asphyxiated by gas. Four or five days after the proofs of death were transmitted to the insurance company, its chief adjuster, Mr. P. E. Eyler, went to Galveston for the purpose of investigating the claims and ascertaining, if possible, the cause of death. Upon Mr. Eyler's arrival in Galveston he was taken to the home of deceased by the said J. A. Robertson, where, after meeting Mrs. McDonald, he, in the presence of Mr. Robertson and one of the ladies of the household, made tests of the gas heater. Mr. Eyler interviewed the doctors that had been called to see Mr. McDonald on the occasion of his death, and after completing his investigation informed the said Mr. Robertson that he did not believe that the death of the deceased was due to gas asphyxiation or other accidental cause, and that his investigation had lead him to believe that death was probably due to apoplexy or other disease.

Mr. Robertson, assisted by Mr. J. W. Carson, son-in-law of the widow, and administrator of the estate of the deceased, endeavored to secure from Mr. Eyler payment of the policies in full. Mr. Eyler refused to pay the policies for the alleged reason that he did not believe the death was due to violent, external, and accidental means. Mr. Eyler further contended, in discussing the claims with Mr. Robertson and Mr. Carson, that the insurance company was...