Amicable Life Ins. Co. v. O'Reilly, 2983.

• Decision Date: 14 July 1936
• Docket Number: No. 2983.,2983.
• Citation: 97 S.W.2d 246
• Parties: AMICABLE LIFE INS. CO. v. O'REILLY.
• Court: Texas Court of Appeals

97 S.W.2d 246

AMICABLE LIFE INS. CO. v. O'REILLY.

No. 2983.

Court of Civil Appeals of Texas. Beaumont.

July 14, 1936.

Rehearing Denied October 7, 1936.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Suit by Daisy Bell O'Reilly against the Amicable Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for new trial.

V. H. Stark, of Orange, and O. F. Jones and McClellan, Lincoln & Williams, all of Waco, for appellant.

E. L. Reid and H. M. Kinard, both of Orange, for appellee.

WALKER, Chief Justice.

On the 31st day of August, 1935, appellee, Mrs. Daisy Bell O'Reilly, instituted this suit in the district court of Orange county, against appellant, to recover "double indemnity" insurance under the provisions of an insurance policy issued by appellant to Edward James O'Reilly on the 19th day of May, 1935, in which she was named "beneficiary, wife of insured." The principal coverage of the policy was for $1,000; by a supplemental agreement, attached to the policy, appellant agreed that, "should the death of the Insured be caused by an accident, to pay to the Beneficiary named in the Policy $1,000.00, which sum is equal to and shall be in addition to the Principal Insurance." A condition of this supplemental agreement was that "this Double Indemnity Benefit shall not be paid if it shall appear that such death resulted, directly or indirectly, wholly or in part, * * * from police duty in any * * * police organization." Only the conditions of "double indemnity" were put in issue. On the trial it was agreed that the policy of insurance in controversy was in force at the time of the death of Edward James O'Reilly; that proof of death and demand were made sufficient to entitle appellee to the statutory penalty and attorney's fees, if such be recoverable; that $250 was a reasonable attorney's fee, if any attorney's fee was recoverable; that appellant has tendered and been willing to pay the principal coverage of the policy in the sum of $1,000; that the issue in this case "lies solely upon the liability of the defendant company to pay double indemnity under the double indemnity provision of the policy"; that, for the purpose of this trial only, it was agreed by all parties that the arrest of Edgar Eskridge by Edward James O'Reilly on the day preceding O'Reilly's death was a legal arrest. On the trial to the court without a jury, it being made to appear that appellee had accepted the tender made by appellant of the principal coverage of the policy, judgment was entered in her behalf for $1,000, the amount of coverage under the double indemnity provision copied above, with judgment for attorney's fees, damages, etc. In support of its judgment the lower court filed the following fact conclusions:

"Third. I find that the death of the insured, Edward James O'Reilly, was accidental and resulted directly, independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental causes, towit, as the result of a gun-shot wound inflicted by Edgar Eskridge.

"Fourth. I find that Edward James O'Reilly was shot by Edgar Eskridge on May 29th, 1935, and as the result of such accident died instantly after being so shot.

"Fifth. I find that on the 28th day of May, 1935, Edward James O'Reilly was the Chief of Police of the City of Orange and in the performance of his official duties arrested Edgar Eskridge for unlawfully carrying a pistol and took him before the County Attorney of Orange County, Texas; upon the statement of the said Edgar Eskridge, who at said time was a Baptist Preacher, that he would not again carry deadly weapons until he had a right to do so, no charges were preferred against him and he was released from custody.

"Sixth. I find that after Edgar Eskridge was released from custody by Edward James O'Reilly, the two of them shook hands and parted in a friendly manner; and in this connection, I further find that upon releasing the said Edgar Eskridge from custody on May 28th, 1935, the said Edward James O'Reilly had completely performed his police duty.

"Seventh. I find that on May 29th, 1935, during the noon hour while the said Edward James O'Reilly was standing on a street corner in the City of Orange, Texas, talking to a friend, the said Edgar Eskridge drove in an automobile close to the street corner on which the said Edward James O'Reilly was standing and without either words or provocation and without the said Edward James O'Reilly being aware of his presence, the said Edgar Eskridge stopped his automobile and immediately shot and killed said Edward James O'Reilly with a shot gun.

"Eighth. I find that the death of the said Edward James O'Reilly did not result directly or indirectly, wholly or in part, from police duty in any military, naval or police organization and that such death did not occur under any circumstance, condition or state of facts excepting defendant from liability under the terms of the policy issued by it to Edward James O'Reilly."

The following is all the testimony offered by appellee on the trial of the case in lower court:

First, the policy of insurance; only the provision of double indemnity copied above is material to this appeal.

Second, the witness W. L. Shepherd; the lower court correctly summarized all the pertinent testimony of this witness by the fifth, sixth, and seventh fact conclusions.

Third, the witness James Neff, who testified as follows, questions and answers reduced to narrative:

"I am James Neff; county attorney of Orange County. I held that office during the month of May, 1935. I knew Ed J. O'Reilly during his lifetime. At the time of his death and for sometime prior thereto he was Chief of Police of Orange. I knew Rev. Edgar Eskridge. I recall on the day before Mr. O'Reilly was slain in Orange that he brought Eskridge to my office in the courthouse. He brought him there to let him show me his credentials for carrying a pistol. O'Reilly didn't say anything in the presence of Eskridge about having arrested him for carrying pistols. There is some of that I don't recall. Mr. O'Reilly called me that morning about eight o'clock; I told him I would see him and I came to town. I went to the City Hall and saw him on the city lot. At that time the preacher was sitting on Main Street in his car. And O'Reilly and Eskridge came to my office and after they came in O'Reilly searched him in my presence; and so we discussed the matter of Eskridge carrying a gun and I asked to see his authority and he told me about his authority but he never could produce any at all, and he then promised to take his guns home and leave them and he didn't have a gun on in my office, but he promised he would take his guns home and leave them and O'Reilly and Eskridge shook hands and apparently parted as friends. O'Reilly left my office before Eskridge did. I don't know of any other meetings of those parties from that time until Eskridge killed O'Reilly the next day. That was about eight o'clock on the morning before the day he was killed. The killing was about one o'clock P. M. of the following day. Eskridge was released from custody in my office; and after that he and O'Reilly shook hands and the matter was over so far as I know, at that time.

"I don't know where the preacher's guns were when they came to my office; I did not see them. From what was said Mr. Eskridge had been carrying guns—pistols on or about his person, which led to his arrest by the Chief of Police. I can't say that Mr. Eskridge said anything about what he had been doing which led to his arrest.

"The question of the raid on the Silver Slipper was not mentioned by him when he was down there, I don't know, I don't believe it was. If we talked about that I don't remember it Judge; I don't remember O'Reilly saying anything about it when he was in there; I don't remember them talking about that. I don't know where the preacher's guns were when they were in my office. I never had the guns, I never saw them. I did not require an affidavit on his part that he would not...