American Nat. Ins. Co. v. Hammond
| Decision Date | 23 January 1936 |
| Docket Number | No. 1686.,1686. |
| Citation | 91 S.W.2d 432 |
| Parties | AMERICAN NAT. INS. CO. v. HAMMOND et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Johnson County; O. B. McPherson, Judge.
Suit by Mrs. Julia M. Hammond, joined pro forma by her husband, against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Walker, Baker & Walker, of Cleburne, and Handley & Schaeffer, of Dallas, for appellant.
W. E. Myres, of Fort Worth, for appellees.
This suit was brought by Mrs. Julia M. Hammond, joined pro forma by her husband, against the American National Insurance Company to recover on a life insurance policy issued by the defendant on the life of Rosa Lee Hammond. The plaintiff sued to recover double indemnity as provided in the policy on the theory that the insured lost her life by accidental means, and also statutory penalty and attorney's fees. The insurance company defended on the ground that the insured had committed suicide in violation of the terms of the policy. The verdict of the jury was favorable to the plaintiff, and the court entered judgment in her behalf for double the face of the policy, with 12 per cent. penalty and attorney's fees. The defendant appealed.
The insured was killed by being shot in the chest with a shotgun. The insurance company sought to avoid liability on the ground that she committed suicide in violation of the terms of the policy. It was a closely contested issue as to whether or not she shot herself or was shot by a male companion. The jury found that she did not kill herself. The appellant here contends that the evidence was insufficient to support the verdict. It would not serve any useful purpose to recite the evidence in this opinion. It is sufficient to say that we have very carefully reviewed the evidence and reached the conclusion that it is sufficient to support the verdict. Home Benefit Association v. Briggs (Tex. Civ.App.) 61 S.W.(2d) 867 and authorities there cited.
The jury found that the insured did not kill herself, but there was no issue submitted by the court nor finding made by the jury as to whether or not she was killed by the male companion. Appellant insists that, because of the absence of such finding, the verdict is insufficient to support the judgment. We cannot agree with appellant's contention. The contract of insurance provided that the company would pay double the face of the policy if the insured "sustained bodily injury, solely through external, violent and accidental means, * * * resulting in death of the insured. * * *" Since it was alleged by both parties that the insured was killed by being shot by a gun, it was not necessary to submit that issue to the jury. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, par. 5, 44 A.L.R. 627; Lafield v. Maryland Casualty Co., 119 Tex. 466, 33 S.W. (2d) 187. If the insured was killed by being shot with a gun, as alleged by the parties, and if the injury was not self-inflicted, as found by the jury, then the death of the insured resulted from an injury sustained solely through external, violent, and accidental means, and it was not otherwise material who inflicted the wound causing her death. National Life & Accident Ins. Co. v. Hodge (Tex.Civ.App.) 244 S.W. 863; Jefferson Standard Life Ins. Co. v. Myers (Tex.Com.App.) 284 S.W. 216; 1 C.J. 431.
E. R. Hill was a material witness for the appellant. He resided in Tarrant county, but promised to attend court as a witness for the trial in Johnson county. He was in Cleburne on one night during the time the case was on trial and promised to remain over and testify as a witness the next morning. He did remain over until about 7:20 o'clock the next morning, but left before court convened. The appellant complains of the refusal of the court to allow it to withdraw its announcement of ready and to postpone the trial because of the absence of this witness. No attempt was made to take the deposition of the absent witness, nor was any effort made to have the witness subpœnaed until after 9 o'clock on the day that he failed to appear and testify as a witness. The ruling of the trial court under these circumstances does not require a reversal of the judgment appealed from. Revised Statutes, art. 3707; 9 Tex.Jur. 698; Gulf, C. & S. F. Ry. Co. v. Wheat, 68 Tex. 133, 3 S.W. 455; East Line & Red River R. R. Co. v. Scott, 71 Tex. 703, 10 S.W. 298, 10 Am.St.Rep. 804; Texas Employers' Ins. Ass'n v. Howard (Tex.Civ.App.) 61 S.W.(2d) 132.
While counsel for appellant was cross-examining a witness with reference to the floor plan of the house where the killing took place and the position of said house in relation to near-by streets and other buildings, the following occurred:
About the time this colloquy was concluded, another one of appellant's attorneys approached the court's desk and whispered to the judge that he objected to the offer of counsel in the presence of the jury to allow the jury to view the scene of the accident. Whereupon the court said: "Gentlemen, you will not consider that statement about going down and looking at a view of the house." Whereupon counsel for appellee said: "I will withdraw it myself then, your Honor." The bill of exception recites that some of the jurors perceived that counsel for appellant was making the objection. It is here contended that the above conduct requires a reversal of the judgment appealed from. We recognize the rule that, in cases where the relative positions of various...
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