Great Am. Reserve Ins. Co. v. Sumner

• Decision Date: 11 February 1971
• Docket Number: No. 526,526
• Citation: 464 S.W.2d 212,49 A.L.R.3d 667
• Parties: GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. Tina Elizabeth SUMNER, Appellee.
• Court: Texas Court of Appeals

Page 212

464 S.W.2d 212

49 A.L.R.3d 667

GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. Tina Elizabeth SUMNER, Appellee.

No. 526.

Court of Civil Appeals of Texas,

Tyler.

Feb. 11, 1971.

Rehearing Denied March 11, 1971.

Lawrence & Lawrence, Wm. D. Lawrence, Jr., Tyler, for appellant.

Ramey, Brelsford, Flock, Devereux & Hutchins, Mike A. Hatchell, Jack W. Flock, Tyler, for appellee.

MOORE, Justice.

This is a suit for the recovery of proceeds of an insurance policy insuring against accidental death. The policy was issued by appellant Great American Reserve Insurance Company upon the life of Hoyt V. Sumner, deceased. His wife, Tina Elizabeth Sumner, appellee, was named as beneficiary. The policy was in the principal sum of $5,000.00 and provided such sum would be paid to the beneficiary if '(1) loss or disability resulting solely, directly and independently of all other causes from accidental bodily injury sustained during the term of this policy * * *.' Section VI of the policy provided: 'If such injury shall independent of all other causes and within ninety (90) days from date of accident solely result in any one of the following specific losses, the Company will pay in lieu of any other indemnity payable under this policy: * * * Life--The Principal Sum.'

The insurance company pleaded that the insured died as the result of a gun shot wound to the head when he was confronted by his assailant, David Smith, while the insured was allegedly engaged in an act of sexual intercourse with the assailant's wife. The company denied appellee's claim under the policy on the ground that the deceased should have anticipated death by reason of his adulterous act and did not die as the result of accidental bodily injuries. After a trial before the court sitting without a jury, the trial court entered judgment in favor of the beneficiary-appellee, from which the insurance company perfected this appeal.

The policy in question does not contain any provision which would limit or destroy the insurer's liability for death or injury to the insured as a result of an intentional act of another, nor is there any provision in the policy excluding liability where death or injury results to insured while engaged in the violation of law.

The parties are in basic agreement that the sole question presented by the case in the trial court was whether or not the insured died as a result of an accident. They both further agree that the prevailing law was correctly stated in the case of Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W.2d 517, at page 518 (1955), wherein the rule is stated:

'* * * As stated in the Hutcherson case, the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the killing, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability his wife would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that she would probably kill him, then his death was accidental. * * *'

It seems to be the well settled law in this state that death by gun shot, or by any form of homicide, at the hands of a third person is deemed to be an 'accident', even though death was intended by the person doing the shooting. This rule, however, is not without exception. If the deceased, prior to death, engaged in some conduct toward his assailant from which he did know, or should have known, the assailant would kill him by violent means, then the death is deemed not to be an 'accident'. Hutcherson v. Sovereign Camp, W.O.W ., 112 Tex. 551, 251 S.W. 491 (1923); Releford v. Reserve Life Insurance Company, supra; American Nat. Ins. Co. v. Garrison, 97 S.W .2d 534 (Tex.Civ.App., Eastland, 1936, writ dism.); American Nat. Ins. Co. v. Hammond, 91 S.W.2d 432 (Tex.Civ.App., Waco, 1936, writ dism.); and others.

By its first point as we understand it appellant challenges the legal sufficiency of the evidence to support findings of fact numbers 6 through 8 made by the trial court, whereby the court found that the death was a result of an accident as viewed from the standpoint of the deceased/insured that the deceased/insured had not entered into an affray with his assailant immediately prior to the shooting, and that from the information available to him, the deceased/insured could not reasonably foresee that he would be killed by his assailant. By his third point, appellant says that the deceased, by reason of his adulterous conduct, should have anticipated death and therefore his death did not constitute an accident. Both points will be discussed together.

Under the first point of error it becomes our duty to examine the record and determine whether or not there is any evidence of probative force to support the fact findings of the trial court. No rule is better settled than the one to the effect that if there is any evidence of probative force to sustain the findings of the trier of the fact, the appellate court is bound by such findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. In determining this question we must view the evidence in a light most favorable to the appellee, rejecting all evidence favorable to the appellant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286. The findings challenged by appellant as being without support in the evidence are as follows:

'(6) Viewed from the standpoint of the deceased, it was not reasonably foreseeable to the deceased that by reason of his illicit meeting in a secluded place with assailant's wife that he, the deceased, would encounter the armed assailant, DAVID SMITH, at the place and upon the occasion in question.

'(7) After being surprised and confronted by the armed assailant, the deceased did not enter into an affray with the assailant nor engage in any further conduct calculated to invite or provoke the shot which killed him.

'(8) Viewed from the deceased's standpoint, with the information available to him at each step of the transaction, it was not reasonably foreseeable to the deceased that any act of the deceased would bring about a fatal gun shot wound.'

The only testimony as to what actually occurred at the time and place of the killing was given by the assailant, David Smith; his wife, Birdie Smith, having died prior to trial, there were no other witnesses to the incident. When viewed in a light most favorable to the findings, the evidence shows that the deceased had been acquainted...