Georgia Casualty Co. v. Shaw

• Decision Date: 06 June 1917
• Docket Number: (No. 7413.)
• Citation: 197 S.W. 316
• Parties: GEORGIA CASUALTY CO. v. SHAW et al.
• Court: Texas Court of Appeals

197 S.W. 316

GEORGIA CASUALTY CO. v. SHAW et al.

(No. 7413.)

Court of Civil Appeals of Texas. Galveston.

June 6, 1917.

Rehearing Denied June 28, 1917.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Suit by Ella Shaw and others against the Georgia Casualty Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Frank S. Anderson, of Galveston, for appellant. Stewarts, of Galveston, for appellees.

GRAVES, J.

Appellees brought this suit in the district court of Galveston county against Georgia Casualty Company, appellant, to recover the sum of $7,500, being the value of an accident insurance policy issued by appellant to Robert G. Shaw, the insured, in which appellee, Ella Shaw, is named as beneficiary. Appellees pleaded that the insured, Robert G. Shaw, died February 17, 1916, from septicemia, or blood poisoning, resulting directly from a gunshot wound received by him on February 1, 1916; that such injuries were effected through violent, external, and accidental means, and that the policy issued by appellant covered that class of injuries at the time they were received by insured. They also pleaded proof of loss and demand for payment more than 30 days before institution of suit, the failure and refusal of appellant to pay, and the employment of an attorney. Appellees asked judgment in the sum of $7,500, the face of the policy, plus $900 statutory damages of 12 per cent. for failure to pay the amount of the policy promptly, plus $2,500, alleged to be reasonable attorney's fees for prosecution of the suit. Appellant denied these allegations, and alleged that Robert G. Shaw, the insured, assaulted George A. McLarty with intent to kill him; that McLarty in self-defense shot insured, Shaw, causing the wounds from which insured died, and that the wounds received by Shaw were therefore not received by accidental means. The court submitted the case on special issues, as follows:

"(1) Did Robert G. Shaw unlawfully assault and shoot George A. McLarty with a loaded rifle with the intent to kill him?

"(2) If you answer question No. 1 in the affirmative, then will you answer, Did Shaw receive the injuries from which he died while McLarty was resisting and repelling such assault in self-defense?"

The jury answered the first question in the negative. Judgment was entered on the 14th day of July, 1916, in favor of appellees against appellant for the sum of $7,500, the amount of the policy sued on, the sum of $900, statutory damages of 12 per cent. for delay, and the further sum of $1,500, found by the court to be reasonable attorney's fees, making a total of $9,900, from which judgment the casualty company prosecutes its appeal.

At the close of all the evidence the casualty company made the following agreement or concession:

"Defendant admits that the plaintiff is entitled to recover upon the policy sued upon herein, and that Robert G. Shaw came to his death by violent, external, and accidental means, unless the jury should make affirmative answers to both special issues No. 1 and No. 2 submitted, and the defendant be entitled, as a matter of law, to a judgment thereon."

Upon this state of the record, the main question in the case is whether it was shown that Shaw came to his death by accidental means, within the meaning of the policy, and whether it was or not depends alone, under this quoted agreement, on the sufficiency of the evidence to sustain the jury's negative answer to special issue No. 1; in other words, if the evidence did not require the jury to find that Shaw both unlawfully assaulted and shot McLarty with intent to kill him, and also received his mortal injuries at McLarty's hands while the latter was in self-defense resisting such assault, then a judgment of recovery upon the policy was admittedly proper.

Accordingly, in its first four assignments, appellant attacks the sufficiency of the evidence to sustain the jury's answer to special issue No. 1, contending that the answer was not only contrary to, unsupported by, and against the obvious weight of any evidence in the case, but was the opposite conclusion to that which ordinary minds would be led to. After a most painstaking review and consideration of the evidence, we are unable to agree with appellant. It has with marked discrimination and ingenuity woven a most persuasive web of circumstantial evidence, and therefrom deduced a most plausible conception of how the double tragedy was enacted, but at most and best it is but a theory, something which, when applied to past events, can never be demonstrated, a creature of the mind. Likewise, and with no differences except, perhaps, in degree of probability, the appellees have from the same body of testimony erected their own structure of speculation upon how it occurred; and, in our opinion, the state of the entire evidence was such as to make it legitimately susceptible of the application of either theory, according to the individual viewpoint. The testimony of the various witnesses is almost free of contradiction and of discrepancy. The double homicide occurred in a room in the Cotton Exchange Building in Galveston, with only its two victims present in that room at that particular time. It was vouchsafed to no one who testified to see either the actual inception or the consummation of the difficulty between the two participants that within a few moments resulted in the death of the one and the mortal wounding of the other; nor, indeed, was any witness able to say that he saw either man actually shoot at the other, although the witness Kerr did state, after the first shot, he turned toward the open door of the Cotton Exchange office and saw Mr. Shaw pointing a gun towards the east or northeast; that, not desiring to see more, he turned away, but after hearing a second shot, he returned, looked in the door a second time, and did not see Shaw, but saw McLarty standing up in a different part of the room from where he was last seen about two or three minutes before the shooting; that he then went out of sight again, and afterwards heard the third and last shot fired. As already indicated, no other witness saw or heard as much; and even he admitted:

"I don't know whether McLarty came in there and attacked Shaw or whether Shaw attacked McLarty."

Dr. Gammon, whose testimony and knowledge of the conditions upon which it was based, is hereinafter more fully referred to, after having the two wounds of McLarty described to him, was asked the direct question, "What effect would those wounds have had," and replied:

"The bullet that entered — that would enter, and just such a bullet as this was, fired into Robert Shaw's body, when entering near the right shoulder might or might not produce instant death; but a bullet fired, striking near the pit of the stomach, and taking a range that would bring it out near the right shoulder, would surely sever the aorta and vena cava, the two great blood vessels that lead from the heart to the lower part of the body, and cause instant death. Q. When you say `instant death,' what effect would be produced on a man as to what he would be able, if anything, to do? A. Well, severing blood vessels of that size, as near the heart as those vessels would be in the track of the bullet, entering at the pit of the stomach and coming out under the right shoulder, the character of this bullet — the character of the wound it made, lacerates completely all of the tissues in that track and for a distance around it, and, judging from the injury done to the muscles of Shaw, I think that that bullet would surely cut those two large vessels, which would instantly, with the first contraction of the heart, empty the heart of all of the blood contained therein; at the next dilation would empty the brain of all of the blood there, and that the man would drop to the floor within three seconds after the ball struck him."

It thus conclusively appears, we think, not only that there is a fatal hiatus in the actual proof as to which man began the difficulty, committed an assault, or fired the first shot which, however much or mathematically we may theorize upon the elaborate network of physical facts and conditions shown in the record, cannot be supplied, but that there was sufficient evidence in the record as a whole to have justified the jury in concluding that Shaw was shot first, hence committed no assault, and that McLarty was the aggressor and assaulted him. Indeed, they must have reached that conclusion if they accepted Dr. Gammon's quoted opinion as correct; because, under that, it would have been a physical impossibility for McLarty to have operated and shot Shaw with the kind of gun the only...