American Nat. Ins. Co. v. Walker

• Decision Date: 25 February 1935
• Docket Number: No. 4373.,4373.
• Citation: 81 S.W.2d 1061
• Parties: AMERICAN NAT. INS. CO. v. WALKER.
• Court: Texas Court of Appeals

81 S.W.2d 1061

AMERICAN NAT. INS. CO. v. WALKER.

No. 4373.

Court of Civil Appeals of Texas. Amarillo.

February 25, 1935.

Appeal from District Court, Bowie County; R. J. Williams, Judge.

Action by Mrs. Lula Walker against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

King, Mahaffey, Wheeler & Bryson, of Texarkana, for appellant.

Wm. V. Brown, of Texarkana, for appellee.

HALL, Chief Justice.

This suit was filed by the appellee, the widow of J. E. Walker and the beneficiary named in two policies of life insurance issued by the appellant insuring the life of her deceased husband. One policy is for the sum of $210 and the other $205.

Her action is based upon the double indemnity clauses therein contained.

The appellee alleged that said policies contained a rider or clause providing that in the event of the death of said J. E. Walker, by, through, and as the result of accidental means that the defendant would pay the beneficiary named therein double the face of the policy. She alleges that J. E. Walker was injured on the 4th day of August, 1932, in an automobile wreck near Clarksville, Tex., in which automobile they were riding; that his chest, heart, aorta, and other blood vessels of his heart and lungs were injured, which resulted in his death on the 28th day of August, 1932; that she made proofs of death and the appellant paid her the life benefits due upon said policies, amounting to the sum of $415; that she surrendered the policies to appellant at that time; that on the 27th day of July, 1933, she made demand upon the appellant for payment of $415 more which she alleges is due her under the double indemnity clause. This demand was refused. She then filed this suit to recover $415 with 6 per cent. interest, together with reasonable attorneys' fees, alleged to amount to $200 and all other costs of suit.

The appellant answered by general exception, a general denial, and specially alleged that there had been an accord and satisfaction between the parties following the death of John E. Walker; that upon receipt of satisfactory proofs of death appellant had paid appellee the sum of $415 in accordance with the proofs of death and the terms and provisions of the policy, which appellee accepted in full settlement of all sums due her under said policy; that because the appellee accepted the $415 in satisfaction of all benefits and liability without considering the double indemnity clause, she had thereby released appellant from further liability on said policies.

In response to two special issues, the jury found: (1) That the death of Walker on August 28, 1932, was caused solely by the accident in which he was injured on August 4, 1932; and (2) that $165 in money would be a reasonable attorneys' fee. Judgment was entered in accordance with the verdict.

By the first two propositions the appellant insists that the testimony was wholly insufficient to prove that Walker's death resulted from any injuries which he might have received at the time of the accident, but only raised a surmise and suspicion, the court should have directed a verdict in its favor because the testimony went no further than to show that Walker was in an accident and thereafter complained of pain in his chest and side, but failed to show that there was any visible sign of any injury to any part of his body, failed to show that he had any medical attention for any injuries he may have received, but on the other hand clearly showed that he worked at hard labor every day from the date of the alleged accident up to the date of his death.

These propositions are not sustained by the record. The statement of facts is voluminous, but, in addition to the testimony of the appellee, there is sufficient testimony from other witnesses not only to have required the court to submit the issue of the cause of his death to the jury, but, in our opinion, to sustain the jury's finding by a preponderance of the evidence.

By the third proposition it is insisted that because the plaintiff sued upon the policies alleging that they contained a rider or clause providing for double indemnity and because such clause was not introduced in evidence, the court erred in refusing to instruct a verdict in appellant's favor.

This proposition is not true to the record. The allegation is that the policies were surrendered to appellant at the time the first payment was made and notice was given in plaintiff's pleading to produce the policies at the time of the trial. They were produced and the policies as a whole were introduced in evidence, as shown by the record. It was further shown that before the suit was filed, appellee's attorney wrote a letter to appellant demanding that the policies be returned for use in evidence. Moreover, one C. B. Norris, the agent of the appellant, testified that he knew at the time he paid the $415 to Mrs. Walker and the undertaker who buried her husband that the policies provided for double indemnity in the event of the accidental death of the assured; that he knew if the assured died as the result of an accident the beneficiary was entitled to twice the face of the policies, which would be $830 instead of $415. This proposition is overruled.

Upon direct examination plaintiff was asked this question: "Did he [meaning the insured] ever suffer with any heart ailment or heart trouble that you know of before this accident?" She answered the question in the negative.

The appellant objected because she was a nonmedical expert as to what the insured had suffered with prior to the time of the accident and was not qualified to state what the insured had suffered with and further that no circumstances are shown which would permit her to testify as to what he had suffered with before that time.

Before the question was answered and before the court ruled, she testified that she had lived with her husband thirty-five years and the objection was then overruled. This question...