Ætna Life Ins. Co. v. Hicks

• Decision Date: 17 February 1900
• Citation: 56 S.W. 87
• Parties: &#198;TNA LIFE INS. CO. v. HICKS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

56 S.W. 87

ÆTNA 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 $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., 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 rever, 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 notwithstanding that he was weakened and debilitated from said disease, and notwithstanding that he was informed and knew the danger and risk necessarily attendant upon a journey of the character he proposed taking, owing to his said diseased condition, yet voluntarily assuming said risk, and with full knowledge of the danger to his life therefrom, said Hicks, without there being any necessity therefor, did arise from his sick bed at San Marcos, and did board the train at San Marcos, and did proceed thereby to San Antonio, Tex., where, without assistance, he left said train, and walked about to different places in the city, and without assistance again boarded a railroad train for Columbus, Tex., and while on said train, and while the same was in motion, without assistance, said Hicks many times arose from his seat, and walked about, and this defendant averred that if said Hicks met with the accident and suffered the injury alleged, that said accident and injury were the direct result of said disease and bodily infirmity with which the said Hicks was at the time affected, and was the direct result of his voluntary overexertion, and his said voluntary exposure to unnecessary danger, and while said Hicks was so engaged and affected, and that the death of the said Hicks did not result, independently of all other causes, from said accident and injury, if any there were, but was contributed thereto, and was directly and indirectly the result of said disease, and that said death was the result of said voluntary overexertion and said voluntary exposure to unnecessary danger, as thereinbefore set forth,—all of which said defendant was ready to verify; wherefore it prayed judgment whether said plaintiff could or should have and maintain its action aforesaid against said defendant." The trial of the case resulted in a judgment for appellees for $3,000, with 6 per cent. interest from September 28, 1898, the statutory penalty of 12 per cent., and $500 attorney's fees.

The evidence shows that the deceased, Ellis Hicks, had been sick in bed with fever at San Marcos, Tex., for at least four days prior to the 18th day of April, 1898, on which day he telegraphed his mother, Ardella Hicks, of his condition, and she at once went to him at San Marcos. She reached San Marcos on the night of the 18th, and found Ellis in bed with fever. The next day his doctor called to see him, and told her that her son had typhoid fever. She asked the doctor if she could take Ellis home to Columbus, and was told that it would be dangerous to move him in his then condition. The physician who attended Hicks at San Marcos testified that he was first called to see him on the 10th or 11th of April, and continued to treat him until the 18th or 19th of the month, when Hicks left San Marcos to go to his mother's home at Columbus; that Hicks had typhoid fever,—had all of the symptoms that generally follow an ordinary case of enteric fever. When this witness last saw Hicks his temperature was 104, and his physical condition very weak and debilitated. His disease was in its first stage, and there were no symptoms of its giving away at the time he left San Marcos, and witness advised him not to take the trip. Hicks and mother got into a hack at San Marcos on the 19th, and drove to several places in the town, at which he got out, transacted business, and returned to the hack, and got in again without assistance. They drove to the depot, took the cars for San Antonio, and, upon arrival there, got into a hack, and drove to various places in the city, among them the post-office building, where Hicks got out, and went up a long flight of steps, and transacted...