American Casualty Co. v. Jones, 5208.

• Decision Date: 16 December 1940
• Docket Number: No. 5208.,5208.
• Citation: 146 S.W.2d 423
• Parties: AMERICAN CASUALTY CO. v. JONES et al.
• Court: Texas Court of Appeals

146 S.W.2d 423

AMERICAN CASUALTY CO. v. JONES et al.

No. 5208.

Court of Civil Appeals of Texas. Amarillo.

December 16, 1940.

Error from Lynn County Court; P. W. Goad, Judge.

Action by Mrs. Willie Jones and husband against the American Casualty Company on a life and accident insurance policy. Judgment for plaintiffs, and defendant brings error

Affirmed.

John G. Whitaker, of Dallas, for plaintiff in error.

Truett Smith, of Tahoka, for defendants in error.

JACKSON, Chief Justice.

The record shows that on November 17, 1937 the American Casualty Company for an agreed consideration issued to T. C. Mason a life and accident insurance policy by the terms and provisions of which, among other protection, it insured him against injuries and death by accidental means.

The insured was eighty-four old at the time the policy was issued and Mrs. Willie Jones, his daughter, was named as beneficiary by insured who died May 18, 1938 as the result of a fall which caused a fracture of his skull at the base of his brain.

The deceased was out in the yard of the beneficiary on the day he fell and there was a high wind blowing. The old gentleman staggered and fell, struck his head against a post which fractured his skull and he died in a few hours.

The provisions of the policy material to a disposition of this appeal are as follows:

                        "Terminal Maximum Indemnities
                Part A    Accidental Death Benefit ..... $1,000.00
                Part B    Natural Death Benefit             300.00
                Part C    Accidental Death of
                            Beneficiary ................    150.00
                Part D    Loss of Both Hands
                            Eyes or Feet ...............    200.00
                          Loss of One Hand
                            Eye or Foot ................    100.00
                

"The terminal Maximum Indemnities recited hereabove are subject to modifications, limitations and the provisions hereinafter contained.

* * * * * *

"Accidental death as referred to in this Policy under Section A, shall mean purely accidental death resulting from and effected solely through external, violent and accidental means, of which there are visible marks or contusion on the exterior of the body at the place of injury, provided that the Insured's death shall result within ten days from date of said accident (suicide, sane or insane, is not covered under this policy). The amount payable for such accidental death shall be the amount specified herein not to exceed the maximum set forth in Part A hereof.

* * * * * *

"Should death or disability occur after five months and within twelve months from the date hereof the company will be liable for forty per cent of the amount otherwise payable."

On September 3, 1938 the defendants in error, Mrs. Willie Jones and her husband, B. H. Jones, hereinafter called appellees, instituted this suit in the County Court of Lynn County against the plaintiff in error, the American Casualty Company, hereinafter called appellant, to recover on the policy issued to T. C. Mason. They pleaded the issuance of the policy, the terms and conditions thereof, the payment of the premium; that it was in full force and effect at the time of the death of the insured and that appellant under its provisions was obligated to pay Mrs. Willie Jones the sum of $400. They also alleged "That the said T. C. Mason, deceased, being the insured under said policy number 1053-A, issued by the defendant, and during the premium paying period of said policy, and between the period of five months and twelve months from the date of the policy, and while no premium was in default on said policy, and while said policy was in full force and effect, did, on the 18th day of May, 1938, sustain bodily injury, solely through external, violent and accidental means, which caused visible marks or contusion on the exterior of the body at the place of injury, by reason of falling upon the ground, causing a fracture at the base of the brain, and that such injury to the head of the said T. C. Mason, exclusively and independently of all other causes, resulted in the death and caused the death of the said T. C. Mason on said date of May the 18th, 1938, and the defendant, upon his death, by accidental means, then and there became bound and obligated and promised to pay to plaintiff, Mrs. Willie Jones, the beneficiary named in said policy the sum of $400.00, which sum is forty per cent of said $1,000.00 specified under Part `A' of said policy."

The appellant answered by general demurrer, general denial and pleaded that it was incorporated under and operating by virtue of Chapter 6, Title 78, Revised Civil Statutes of the State of Texas, which allegation is conceded to be true, and tendered $120, the amount it claimed to be due appellee, in court.

In response to the special issue submitted by the court the jury found that the death of T. C. Mason resulted and was effected solely through external, violent and accidental means. In response to a special issue requested by appellant the jury found that the fall of T. C. Mason was not caused by his physical condition.

On these findings the court rendered judgment against the...