Commercial Casualty Ins. Co. v. Goode, 10926.

• Decision Date: 04 January 1940
• Docket Number: No. 10926.,10926.
• Citation: 135 S.W.2d 816
• Parties: COMMERCIAL CASUALTY INS. CO. v. GOODE.
• Court: Texas Court of Appeals

Page 816

135 S.W.2d 816

COMMERCIAL CASUALTY INS. CO. v. GOODE.

No. 10926.

Court of Civil Appeals of Texas. Galveston.

January 4, 1940.

Rehearing Denied January 25, 1940.

Appeal from Galveston County Court; E. B. Holman, Judge.

Action by Mrs. Mamie Goode against the Commercial Casualty Insurance Company on two accidental death insurance policies. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wood, Morrow, Gresham & McCorquodale, of Houston, for appellant.

Lockhart, Hughes & Lockhart and H. C. Hughes, all of Galveston, for appellee.

GRAVES, Justice.

Under the disposition determined upon for this appeal, no written opinion is required of this court; in deference, however, to counsel for both sides, who have so painstakingly briefed and argued it, this very general statement of the main grounds upon which an affirmance of the trial court's judgment will be ordered is made:

The appeal is from an $810 judgment in Mrs. Goode's favor against the Insurance Company rendered by the county court of Galveston County, sitting without a jury, as for the aggregate found to be due her as the beneficiary thereunder (inclusive of statutory penalties and attorney's fees) upon two accident insurance policies on the life of her deceased husband for $250 each. Section C of both policies contained this provision:

"Against loss of life, $250.00 * * *

"At the hands of any burglar, highwayman, or robber when robbing the insured by force. * * *

"This is a limited policy and provides indemnity for loss of life, limb, limbs, sight, or time by accidental means, only to the extent herein limited and provided."

From evidence presented by the appellee alone, appellant having offered none, the Court found on the facts that the husband had so lost his life, thereby maturing in the wife's favor the legal obligation entailed by that part of the contracts.

The trial court supported its decree by findings of both fact and law, a resume of which—thought to be sufficient for the purpose—is this:

"Findings of Fact.

* * *

"2. I find that on or about the 12th day of June, 1938, Ernest Earl Goode accidentally lost his life through pistol shots at the hands of Pete Calandra, Roland Tyler, and ____ Sutton, while the above named parties were robbing the aforesaid Ernest Earl Goode by force; that said robbery was accomplished with a pistol, and was for the purpose of robbing the said Ernest Earl Goode of the keys which he carried, of which he was the lawful bailee.

"3. I find that the aforesaid Pete Calandra, Roland Tyler, and ____ Sutton, took said keys for all * * * purposes for which they might have use for them in opening said jail and escaping therefrom, * * * and at the time of such taking they had no intention, bona fide or otherwise, of returning them.

"4. I further find that after the jail doors had been opened through the use of the keys so unlawfully and feloniously taken, that one of the prisoners who robbed Goode of said keys, dropped same close to the outer door of said jail, * * * after they had violently assaulted another jailer, Lindgren.

"5. I further find that the intention to rob was complete at the moment that said keys were taken from the deceased, Ernest Earl Goode, and that said Ernest Earl Goode lost his life while being robbed by said Pete Calandra, Roland Tyler, and ____ Sutton. * * *

"Conclusions of Law.

"1. I conclude as a matter of law, based on my Findings of Fact, and from all the evidence, that Ernest Earl Goode was killed while being robbed of the keys of the county jail of Galveston County, Texas, which he held as lawful bailee, and that the felonious and unlawful intention to rob was in the minds of Pete Calandra, Roland Tyler, and ____ Sutton at the time of taking said keys, and that there is nothing in the testimony which would remove such conclusion."

Through a number of propositions appellant contends that judgment should have been rendered in its favor below upon these two grounds:

"(1) Even assuming, * * * that Tyler, Sutton and Calandra, acting together, killed the deceased, Goode, with the intention of taking from him his keys, reasonable minds cannot differ in the conclusion that they did not take them with the intention of permanently appropriating them to their own use and benefit and depriving the owner of the value of them, and, consequently, their act in taking them did not constitute robbery within the meaning of the provisions of the policies.

"(2) In the alternative, plaintiff failed to discharge the burden placed upon her to prove that the insured was killed at the hands of a robber, while the latter was robbing him by force."

As will be noted, both its grounds rest alone upon its contention that there was no evidence supporting the quoted fact-findings upon which the decree adverse to it was rendered—not that any one of them was so against the great weight and preponderance of the evidence as to render it clearly wrong.

Further, its main dependence for authority is put upon the holding of this court in Home Insurance Company v. Brewton, 46 S.W.2d 359, and that of the Court of Criminal Appeals in Smith v. State, 66 Tex.Cr. R. 246, 146 S.W. 547; the rationale of those two decisions being, in its own language, "that reasonable minds could not differ in the conclusion that there was no intention to...