Connecticut General Life Ins. Co. v. Tommie

• Decision Date: 15 May 1981
• Docket Number: No. 8871,8871
• Parties: CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant, v. Kathern Lee TOMMIE and Edith Jones, Appellees.
• Court: Texas Court of Appeals

Page 199

619 S.W.2d 199

CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant, v. Kathern Lee TOMMIE and Edith Jones, Appellees.

No. 8871.

Court of Civil Appeals of Texas, Texarkana.

May 15, 1981.

Rehearing Denied June 9, 1981.

Thomas G. Nash, Jr., Dallas, for appellant.

Logan Ford, Dallas, Woodrow F. Eason, Waco, for appellees.

CORNELIUS, Chief Justice.

This is a suit upon a group insurance policy to recover accidental death benefits. Jerry Lee Tommie was insured under a Connecticut General group policy covering the employees of Texas Instruments, Inc. Kathern Lee Tommie and Edith Jones, Jerry's wife and mother respectively, were named joint beneficiaries, and upon his death they demanded the $120,000.00 accidental death benefit provided by the policy. The insurer refused to pay on the grounds that Mr. Tommie's death was not an accident and further was the result of either self-inflicted injury or disease.

The insurance policy provided that accidental death benefits would be payable if the insured "... has received an accidental bodily injury, and as a result of the injury, directly and independently of all other causes, has suffered ... Loss of Life." The policy specifically excludes from coverage any loss which results directly or indirectly from "... suicide or intentionally self-inflicted injury, ..." and infection or disease.

The circumstances surrounding Mr. Tommie's death were as follows: While Mrs. Tommie was out of the house shopping for groceries, Mr. Tommie dressed himself in her wig, bra, nightie and panties. He went into a bedroom and placed the end of a nylon exercise rope in a noose around his neck. He placed a pad around his neck under the rope. Standing with his back to the door he ran the other end of the rope over the top of the door and down the opposite side of the door around the outside doorknob, and then tied that end around his left foot. The exercise rope was equipped with pulleys so that with his left foot he could increase or decrease the pressure of the rope around his neck. The purpose of the preparations made by Mr. Tommie, according to the medical testimony, was to heighten sexual pleasure during masturbation by reducing the supply of blood, and therefore the supply of oxygen, to the brain by gradually tightening the rope around his neck. The reduced oxygen to the brain produces a state of hypercapnia, or an increase of carbon dioxide in the blood, and a state of hypoxia, or a decrease in oxygen in the blood, which is supposed to increase the intensity of orgasm. When Mrs. Tommie returned she went to the bedroom and found the exercise rope looped over the top of the door and around the doornob. The door was open about 21/2 to 3 inches. She could not push the door open so she got a kitchen knife and cut the rope. At that time she heard her husband's foot hit the floor. She called the police and they found him dead with the rope tight around his neck. The medical testimony was that Mr. Tommie had died from anoxic brain damage secondary to the ligature around his neck. From the position of the body and the other circumstances, it appeared that Mr. Tommie had blacked out or had otherwise lost his balance and fell, placing the full weight of his 200 pound body on the rope around his neck.

The jury found that Mr. Tommie's death was an accident and was not the result of either an intentionally self-inflicted injury or disease, and the trial court rendered judgment accordingly. Connecticut General contends by its first four points of error that there is no evidence or insufficient evidence that Mr. Tommie's death was the result of an accident independent of all other causes, and that the jury's finding of accidental death is against the great weight and preponderance of the evidence.

In Freeman v. Crown Life Ins. Co., 580 S.W.2d 897 (Tex.Civ.App. Texarkana 1979, writ ref'd n. r. e.), this Court analyzed and summarized the many decisions concerning death arising from dangerous or negligent activities and concluded that:

"... The mere fact that a person's death may have occurred because of his negligence, even gross negligence, does not prevent that death from being an accident within the meaning of an accident insurance policy. It is only when the consequences of the act are so natural and probable as to be expected by any reasonable person that it can be said that the victim, in effect, intended the result and it was therefore not accidental.... More is required than a simple showing that the insured could have reasonably foreseen that injury or death might result. As Justice Doughty said in Republic Nat. Life Ins. Co. v. Heyward, supra, the insured must have acted in such a way that he should have reasonably known his actions would probably result in his death...."

The beneficiaries here had the burden to establish that Mr. Tommie's death was due to an accident. Their evidence revealed that his death was by violent and external means, thus raising a presumption that the death was accidental. Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d 549 (Tex.1976); International Travelers Association v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938); Freeman v. Crown Life Ins. Co., supra. They also produced other evidence that the death was an accident when tested by the rules announced in Freeman. Dr. Norton testified that she encountered from time to time in her medical practice the same type of auto-erotic activity as Mr. Tommie was engaged in, and that while some forty deaths per year were reported in the United States as a result of such activity, death is not the normal expected result of that behavior, but would be considered unusual or unexpected. Dr. Montgomery also agreed that death in those circumstances would not be reasonably expected. Dr. Norton further testified that it was likely that Mr. Tommie had engaged in the practice for several years, considering his age and the fact that such behavior generally begins in young men during pubescence or shortly thereafter. From that testimony and all the other evidence, it can reasonably be concluded that, although the type of activity in which Mr. Tommie was engaged was foolish and fraught with substantial risk of injury or death, it was not of such a nature that the insured should have reasonably known that it would probably result in his death. The finding of the jury that the death was accidental was supported by sufficient evidence and was not so against the great weight of the evidence as...