Fidelity & Casualty Co. of New York v. Getzendanner

• Decision Date: 04 November 1899
• Citation: 53 S.W. 838
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. GETZENDANNER et al.
• Court: Texas Court of Appeals

53 S.W. 838

FIDELITY & CASUALTY CO. OF NEW YORK v. GETZENDANNER et al.

Court of Civil Appeals of Texas.

November 4, 1899.

Appeal from district court, Tarrant county; Irley Dunklin, Judge.

Action by John A. Getzendanner and others against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Harris, Etheridge & Knight, for appellant. Flournoy & Altman, for appellees.

STEPHENS, J.

The accident policy declared on insured John A. Getzendanner in the sum of $25 per week against bodily injuries sustained through external, violent, and accidental means, as follows, quoting its second clause: "Or if such injuries, independently of all other causes, shall immediately, continuously, and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation, the company will pay the assured the weekly indemnity before specified, during the continuance of such disability, but not exceeding fifty-two consecutive weeks." The occupation of the assured was that of "visiting yards and ranches, buying and selling cattle not in transit." During the life of the policy, about January 10, 1897, while engaged in driving a cow on horseback, the assured, his horse stumbling, fell to the ground, and, though there were then no signs of physical injury, on the 1st day of March following became wholly insane, and has ever since been confined in the lunatic asylum. According to the agreed statement of facts, whether this insanity was caused by the fall from the horse, or whether the assured, "for a month or six weeks after the accident, was up and about, and attending to his business," were controverted issues, upon which the testimony would have sustained a verdict either way. The fourth paragraph of the agreed statement of facts reads: "The testimony was conflicting as to whether the injuries of the assured resulting from the accident did or did not, independently of all other causes, immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation; but there was sufficient evidence to support a verdict for either party upon this issue." There was no other controverted issue of fact.

The main contention of appellant is that the court erred in submitting the issue of total disability to the jury; the charge reading: "If you believe from the evidence that John A. Getzendanner sustained the injury alleged in plaintiff's petition through external, violent, and accidental causes, in the manner alleged, and that such injury, independently of all other causes, immediately and continuously after such injury was sustained, disabled and prevented said John A. Getzendanner from performing any and every kind of duty which was materially essential to his occupation stated in the insurance policy introduced in evidence in a manner reasonably as effective as you believe the same would have been performed by said John A. Getzendanner if he had not sustained said injury, then you will find for the plaintiff and intervener against the defendant for the sum of twenty-five dollars per week for each and every week, not to exceed fifty-two consecutive weeks, that said John A. Getzendanner was so disabled. The word `immediately,' in the sense used above and in following portions of this charge, refers to the...