Continental Cas. Co. v. Fountain

Decision Date06 March 1953
Docket NumberNo. 14614,14614
Citation257 S.W.2d 338
CourtTexas Court of Appeals

Robertson, Jackson, Payne, Lancaster & Walker and Orrin Miller, all of Dallas, for appellant.

White & Yarborough, Dallas, for appellee.

DIXON, Chief Justice.

This suit was filed by Lottie E. Fountain, plaintiff and surviving widow of James M. Fountain, deceased, against Continental Casualty Company, defendant, on a sickness and accident policy to which was attached a rider covering death benefits in case of death effected solely through accidental means.

Sickness benefits under the policy have already been paid and are not in controversy. Only the death benefit feature is involved in this suit.

The particular provision in the policy covering death benefits is as follows: 'This policy provides indemnity for loss of life * * * resulting from bodily injury effected through accidental means * * *. Injury as used in this policy means bodily injury which is the sole cause of the loss which is effected solely through accidental means while this policy is in force.'

The case was tried to a jury which returned a verdict in favor of plaintiff, finding (1) that a bodily injury sustained by James M. Fountain on Oct. 7, 1949, was the sole cause of his death on Dec. 3, 1949; (2) that he was not at the time of his death afflicted with cancer; and (3) that $600 was a reasonable attorney's fee. The court rendered judgment for plaintiff for $2,280 based on the jury verdict.

The first three points on appeal relied upon by appellant, who was defendant in the trial court, are all to the effect that there is no evidence to support the jury's verdict. We are therefore required to make a careful analysis of all the testimony.

The record before us shows that on the night of Oct. 7, 1949, the deceased James M. Fountain, accompanied by his wife, Lottie Fountain, appellee, was driving his 1948 Buick from Dallas to Houston. Driving conditions were bad, due to a downpour of rain and the glare of headlights from other cars. Some distance north of Houston deceased allowed the right wheels of his car to slip off the edge of the pavement. In struggling with his steering wheel to pull his car back onto the pavement, his left arm was fractured near the shoulder. He drove on to Houston and early next morning went to Jefferson Davis Hospital where his arm was placed in a cast by a bone specialist. At the end of six weeks, when the time came to remove the cast, deceased employed Dr. Clemmie Johnson who removed the first cast and placed another on the fractured arm. In about a week Dr. Johnson removed the second cast and placed the arm in a sling. About Dec. 1, 1949, deceased entered St. Elizabeth's Hospital in Houston, where on Dec. 3, 1949, he died.

What was the cause of his death? Plaintiff undertook to prove that the death of her husband was effected solely through the accident of Oct. 7, 1949 when his arm was broken while he was struggling to steer his automobile back onto the highway. In order to recover the death benefits it was necessary for her to establish her contention by a preponderance of the evidence. Worly v. International Travelers Assurance Co., Tex.Civ.App., 110 S.W.2d 1202 (wr.dis.).

With the exception of an attorney who testified as to the reasonableness of attorney's fees, the only witness in behalf of plaintiff was the plaintiff herself. Here is a summary of her testimony touching the issue before us: She and deceased were married in 1922 and had lived together as husband and wife from the time of their marriage to his death; he was a minister in the Colored Methodist Church; she was with him on the rainy night in October 1949 when he broke his arm; he had to drive on to Houston, about two hours driving time from the scene of the accident; due to high water they were delayed in getting to Jefferson Davis Hospital until about 1:00 o'clock in the morning; at the hospital a bone specialist put his broken arm in a cast; she didn't know of any other parts of his body that were injured, besides his arm; he suffered from his neck and up into his head; his entire arm from a point near his shoulder to over his hand was covered by the cast; he went home afterward and stayed home for six weeks, during which time he was up and about the house but did not do any work; at the end of six weeks her husband went as an out-patient to St. Elizabeth's Hospital to have the cast removed; a colored woman physician, Dr. Clemmie Johnson, had been employed by her husband and had interceded to get him to St. Elizabeth's Hospital; Dr. Johnson had been practicing a number of years and was the only doctor her husband had hired; Dr. Johnson removed the first cast and placed his arm in a second cast, which remained on him about a week; his arm was then put in a sling; he entered the hospital as a full time patient about December 1, 1949; he was very ill then; she thought perhaps they made a urine test, but they were trying to wait for him to get better to do something for him; he died on December 3, 1949; he never did any work after he was hurt; prior to the accident he appeared to her to be strong and healthy; he was a strong bodied man; he could do more work then most any person; he weighed over 200 pounds; he kept their large yard mowed; dug in flower beds and helped her with housework; he had never had any serious illnesses or accident before that; prior to the accident she had not heard any complaints out of him about any other portions of his body; he had normal use of his hands and arms; as far as she could tell, there was nothing wrong with his left arm prior to the accident; he would indicate with his hand, by rubbing his neck and head, that he had pain there; upon his request she rubbed his neck and head; he had never done that before the accident; in all the years he had driven a car she had never heard him complain about either of his arms or his neck and head; she and her husband had been paid more than one sickness claim under this some policy; Dr. Johnson saw her husband most every day for about two weeks before his death; she (plaintiff) had not talked to Dr. Johnson about her husband's illness before his death; following his death Dr. Johnson said the thought he had cancer; she (plaintiff) had not talked to any of the other doctors that treated him either at the County Hospital or at St. Elizabeth's and has not attempted to talk to them since her husband's death to determine the cause of his death; Dr. Johnson told her repeatedly before her husband's death that she did not know the cause of his illness; after his death Dr. Johnson said she thought it was cancer.

On behalf of the defendant, there were two witnesses, both of them physicians.

Dr. Clemmie Johnson of Houston, the deceased's own physician, testified by deposition in response to written interrogatories. In substance, this is what she testified: She is a medical doctor, duly licensed to practice in Texas, with an M.D. Degree received in June 1946; practiced in Houston since July 1948; she knew deceased for about three months before his death; attended him as his physician and saw him every day from Nov. 15, 1949 until he died; she first sent him to St. Elizabeth's Hospital to get an X-ray of his arm when it was about time for him to go back to Jefferson Davis Hospital to have the cast removed; he wouldn't go back to Jefferson Davis because he said the internes weren't fair to him; she called in a consultant, Dr. P. W. Beal; they didn't think the cast should be removed because the fracture didn't seem to have healed; to make the patient more comfortable they put a spica cast on him instead of the hanging cast he had been wearing; the X-ray films taken Nov. 15, 1949 were sent to Dr. Harry Fishbein, roentgenologist, who ventured a diagnosis of a pathological fracture and suggested a K.U.B. film, that is, a kidney-urinary-bladder study; the patient returned next day for the K.U.B. film; also a lateral view of the skull; the reports on those films were essentially negative; they showed no evidence of metastatic bone lesion; left kidney was indefinitely outlined, slightly larger than the right; two days later the patient experienced chills and fever; a urinalysis showed infection which responded well to sulfa therapy; in less than a week the patient began to complain of pain in both lower lung fields and of discomfort of the cast; in seven days the spica cast was removed and the arm placed in a sling; he complained of pain in his chest, aggravated by a cough and a productive sputum; the cough was relieved by codeine; the patient became irritable and uncooperative and would not return to the hospital for a chest X-ray or a complete work-up on his case; X-ray of Nov. 22, 1949 still showed osteoperosis in region of humeral shaft; on Nov. 30th, Dr. Johnson brought deceased to the hospital as an out-patient; a chest X-ray was taken, also a recheck of the arm; showed area of destruction of right sixth rib with soft tissue tumefaction extending into the thoracic cage; there was no doubt from the amount of osteoporosis that the patient had a mitotic figure process; the films were taken to Dr. Fishbein; after consultation with him, the family was told that the patient's condition was one of malignancy; it was the wife's desire that her husband be not told; the patient's condition became worse and he was admitted to the hospital on December 2, 1949; he was seen by an urologist, Dr. Leader, for his urinary incontinence, and by Dr. A. Glassman, a bone specialist, for his fracture; further work-up of the case was postponed by the urologist until the lower urinary tract pathology could be cleared up; he was suffering from acute pyelitis, and that means inflammation of the kidneys; he rapidly weakened and died December 4, 1949; she believed that the patient died from generalized carcinoma, although she did not know what type...

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