American Casualty & Life Co. v. Morrison

• Decision Date: 20 February 1942
• Docket Number: No. 2247.,2247.
• Citation: 161 S.W.2d 796
• Parties: AMERICAN CASUALTY & LIFE CO. v. MORRISON.
• Court: Texas Court of Appeals

Page 796

161 S.W.2d 796

AMERICAN CASUALTY & LIFE CO. v. MORRISON.

No. 2247.

Court of Civil Appeals of Texas. Eastland.

February 20, 1942.

Rehearing Denied April 3, 1942.

Appeal from Jones County Court; Gilbert Smith, Judge.

Action by Nora Morrison against the American Casualty & Life Company on a life insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Chaney, DeShazo & Hyde, of Dallas, for appellant.

Smith & Smith, of Anson, for appellee.

LESLIE, Chief Justice.

Nora Morrison instituted this suit against the American Casualty and Life Company (a state wide mutual) on an insurance policy issued by that company on the life of Kate Brown. Except as an alleged creditor, Morrison had no insurable interest in her life.

The defendant answered by general demurrer, general denial, etc. The case was tried before the court and jury, and, upon the jury's verdict, the court entered judgment in favor of Morrison for the sum of $400, costs, etc. The company appeals.

The defendant requested the court to instruct a verdict in its favor, to grant it a judgment notwithstanding the verdict, and to grant it a judgment on the verdict. Propositions challenging the action of the trial court in refusing to sustain said motions will be first considered. By these propositions the appellant contends that there is no evidence that Kate Brown's death was due solely to accidental means. Briefly, the appellant contends that the policy provided payment only in case of death caused solely by accidental means and that there is no evidence in the record to support recovery on any such theory.

Appellee Morrison alleged in his petition that the insured Kate Brown died by accidental means in that on November 25, 1940, she accidentally slipped on the paved public highway while the same was wet, frozen and slick and sustained an accidental injury which resulted in her death on the 9th day of February, 1941. The policy provides:

"* * *

"If the insured shall sustain bodily injuries as described in the insuring clause which injuries shall independently and exclusively of disease and all other causes, * * * result in any of the specific losses named in Section A, the company will pay in lieu of any other indemnity, not to exceed the amounts set out in Section A. * * *

"This policy insures against loss of life, limb, sight or time, resulting directly and independently of all other causes from bodily injuries sustained during any term of this policy through purely accidental means (suicide, sane or insane, is not covered), and against loss of time beginning while this policy is in force and resulting from disease contracted not less than 31 days after date of this policy."

(Many excepted disabilities, etc.)

"* * *

"The indemnity under this policy, fatal or otherwise for any injury or sickness received directly or indirectly as the result of, or that is contributed to by paralysis, tuberculosis, heart diseases, kidney diseases, high blood pressure, cancer, strains, or sprains, arthritis, enteritis, bladder disease (including both gall and urinal bladder) appendicitis, influenza, rheumatism, malaria, diabetes, epilepsy, neuritis, goiter, and tumors, shall be payable at fifty percent of the amount otherwise payable and for a period of time not to exceed that allowed for nonconflicting illness." (Italics ours.)

Under the provisions of the policy and the decisions of this State, the burden rested upon plaintiff to plead and prove that the death of Kate Brown resulted from purely accidental means and did not come within the exceptions named in the policy. International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040; International Travelers' Ass'n v. Francis, 119 Tex. 1, 23 S.W.2d 282; Robinson v. Aetna Life Ins. Co., Tex.Com.App., 276 S.W. 900. These authorities clearly state and apply the announced rule of law, and also give a comprehensive discussion of the troublesome term "accidental means." No attempt will be made to add anything thereto. From the numerous decisions and discussions on the subject, it very much appears that "Many words darken speech."

While the appellee alleged insured slipped and fell November 25, 1940, on a public road which was wet and slick and injured her head which produced paralysis which in turn produced her death February 9, 1941, the evidence shows no more than that on said date Kate Brown was found sitting by the side of the road out on the dirt shoulder of the same and that she showed no signs of any bodily injuries, and merely complained of being sick at the stomach and dizzy. No witness testified that he saw her fall.

We will not lengthen this opinion by quotations from the testimony. Suffice it to say, that we have carefully considered the same in the light of the pleadings and the authorities above and we have come to the conclusion that the statement of facts presents no evidence of bodily injury of any kind received by the insured as pleaded by the appellee. There is no evidence that the insured died from bodily injuries received solely by accidental means. Further, if the deceased received bodily injuries there is no evidence or finding that they were caused directly by accidental means.

To enter a judgment in favor of the plaintiff on this record would require the indulgence of a presumption that (1) because...