Fidelity & Casualty Co. v. Joiner

• Decision Date: 16 June 1915
• Docket Number: (No. 1481.)
• Parties: FIDELITY & CASUALTY CO. v. JOINER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

178 S.W. 806

FIDELITY & CASUALTY CO. v. JOINER.^†

(No. 1481.)

Court of Civil Appeals of Texas. Texarkana.

June 16, 1915.

Rehearing Denied June 24, 1915.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by James Roe Joiner against the Fidelity & Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The suit was by appellee, the beneficiary named in an accident policy issued to his father, J. R. Joiner, by appellant.

By its terms the policy insured said J. R. Joiner —

"against bodily injury sustained during the term of one year from noon, standard time, of the day that this policy is dated, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) and resulting directly, independently and exclusively of all other causes, in (a) immediate, continuous and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation, (b) immediate (as respects the injury or as respects preceding total disability) and continuous partial disability that prevents the assured from performing fully work essential to the duties of his occupation, (c) death; as follows:

"Article 1. If the assured suffers total disability the company will pay the assured so long as he lives and suffers said total disability twenty-five dollars a week.

"Art. 2. If the assured suffers partial disability the company will pay the assured for the period of such partial disability not exceeding twenty-six weeks, a percentage of the weekly indemnity before specified, to be determined upon the extent of the disability, but not less than 25 per cent. nor greater than 90 per cent.

"Art. 3. If the assured suffers total disability, and if, during the period of said total disability, the assured suffers death as the direct result of the bodily injury causing the said total disability; or, if within ninety days from the date of the accident, irrespective of total disability, the assured suffers death; the company will pay the beneficiary five thousand dollars and for such part of the period between the date of the accident and the date of the death as the assured has not been paid a weekly indemnity an additional sum of twenty-five dollars a week."

"Art. 5. The amounts specified in the preceding articles shall be doubled if the bodily injury is sustained by the assured: * * * (2) While in or on a public conveyance (including the platform, steps or running board thereof) provided by a common carrier for passenger service."

In his petition appellee alleged that:

"On or about the 4th day of June, 1913, while said policy was in full force and effect, the assured therein, to wit, J. R. Joiner, while riding in or on a public conveyance provided by a common carrier for passenger service, to wit, an automobile, sustained bodily injuries, from which said assured suffered immediate total disability, which total disability continued until the 9th day of December, 1913, upon which date said assured died as the direct result of said bodily injuries. Plaintiff says that said bodily injuries which caused said total disability and death of said assured were the direct result of, and were proximately caused by, the automobile in which said assured was riding, as aforesaid, being wrecked and overturned from accidental causes unknown to plaintiff, while said automobile was being operated for passenger service by a common carrier along a public highway and road and while said assured was riding in said automobile as a passenger; he having paid the customary fare charged therefor by the owner and operator thereof. Plaintiff says that by reason of the total disability and death of said J. R. Joiner, as aforesaid, the defendant has become indebted to plaintiff, under the provisions of said policy of insurance, in the sum of $11,342.70, together with interest thereon from the 9th day of December, 1913, until paid at the rate of 6 per cent. per annum; said total amount being apportioned as follows: Double indemnity for death, $10,000; double indemnity at the rate of $50 per week for the period of total disability, which plaintiff alleges to have been 27 weeks less one day, $1,342.70. Plaintiff says that no weekly indemnity was paid to the insured or to any one else for him."

Appellee prayed for a recovery against appellant of the aggregate of the sums specified and interest thereon, and in addition thereto for a recovery of the penalty and attorney's fees provided for by article 4746, Vernon's Statutes.

In its answer appellant denied that the assured "suffered immediate total disability, which total disability continued until December 9, 1913, upon which date he died, as the direct result of said bodily injury received while riding in or on a public conveyance provided by a common carrier for passenger service," and denied that the total disability and death of the insured "was the direct result of and proximately caused by the wreck of an automobile, which automobile was being operated for passenger service by a common carrier," as charged by appellee; and, after setting out provisions in the policy quoted above, alleged that it was not liable because "the injuries received by the plaintiff did not result in his death within 90 days from the date of such injuries," and because said injuries "did not result in total disability as defined in the policy, as hereinbefore set out, and such total disability did not continue from the date of said accident until the date of the death of the assured."

Appellant further alleged that the death of the assured "was not caused by bodily injuries sustained by him and resulting directly, independently, and exclusively of all other causes," and the injury to the assured was not sustained by him "while in or on a public conveyance (including the platform, steps, or running board thereof) provided by a common carrier of passengers for hire, and that it is not liable to the plaintiff herein for double indemnity under the terms of said policy."

The insured traveled as a salesman for a firm of wholesale groceries in Sherman, Wednesday afternoon, June 4, 1913, accompanied by a boy as driver and one Wilson, also a traveling salesman, he left Whitesboro in an automobile, intending to go to Southmayd, Gage, and other nearby towns, to see customers there. While moving rapidly, a short distance out from Whitesboro, the automobile turned over, throwing the insured, Wilson, and the boy to the ground, injuring each of them. Wilson testified:

"When I got up, Mr. Joiner had something over his feet; don't know whether it was a part of the seat or something; don't know what it was. He was trying to pull his feet, and I started to pull him up, and he said he was all right, to look after the boy: `Look after G.' He called him G. So I went over and picked G. up. I thought he was dead. He was unconscious. That was the driver. And I leaned him up on the seat, and he was groaning a little, and I asked Mr. Joiner if he didn't think I had better get a doctor, and he said yes, and I went up the road about a quarter of a mile and phoned for a doctor, and when I came back Mr. Joiner was up and the boy had come to, and a buggy came along about that time, and they were putting him in the buggy. Mr. Joiner was helping. Mr. Joiner was conscious. He was sitting up on the ground there when I went off to the house after the doctor, and the boy was still unconscious. After I came back from telephoning, I took this boy up to that house and took him in the house and put him on a bed and came back down to the car. Brought some water down there and gave Mr. Joiner a drink of water, and we picked up our belongings and walked on up to the house. Mr. Joiner and I walked on up to the house. We got to the house just about the time the doctor did and went in there, and the doctor dressed the boy's wounds first and then dressed Mr. Joiner's. Then we got in a car and went back to Whitesboro. * * * When we got to Whitesboro, Mr. Joiner went up and went up to bed. * * * Mr. Joiner was skinned up all over; nose was skinned and lip was cut, lower lip was mashed, and he had a black eye; don't remember which eye it was; one or the other was black; elbow was skinned; his knee was skinned about four to six inches long; and four of his toes were smashed. He had a bruise on his breast here, and a bruise on his head, on the left side of his head, right along above his ear there."

On special issues submitted to them, the jury found the facts to be: (1) That on June 4, 1913, near Whitesboro, the insured, as the result of an accident while riding in an automobile belonging to one U. G. White, sustained bodily injuries which directly, independently, and exclusively of all other causes resulted in immediate, continuous, and total disability that ever thereafterward prevented him from performing any and every kind of duty pertaining to his occupation, and in his death on December 9, 1913. (2) That the automobile in which he was riding was a public conveyance provided for passenger service by said U. G. White, who prior to and at the time of the accident held himself out to the public as ready and willing to carry for hire all persons indifferently who might apply to him for passage.

On the facts so found, the court rendered the judgment in appellee's favor against appellant for $15,006.45, from which the appeal is prosecuted.

Thomas & Rhea, of Dallas, for appellant. Head, Smith, Maxey & Head, of Sherman, for appellee.

WILLSON, C. J. (after stating the facts as above).

There are 37 assignments, but as we view the record the disposition which should be made of the appeal depends upon the answers to these questions: (1) Was there evidence to support the finding that the death of the assured was due "directly, independently, and exclusively of all other causes" to the injuries he sustained? (2) Was there evidence to support the finding that said injuries...