Heyward v. Republic Nat. Life Ins. Co.

• Decision Date: 10 September 1975
• Docket Number: No. 15442,15442
• Citation: 527 S.W.2d 807
• Parties: Velma L. HEYWARD, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 807

527 S.W.2d 807

Velma L. HEYWARD, Appellant, v. REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellee.

No. 15442.

Court of Civil Appeals of Texas San Antonio.

Sept. 10, 1975.

Rehearing Denied Oct. 1, 1975.

Oliver S. Heard, Jr., San Antonio, Thomas S. Goggan, III, Austin, for appellant.

Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellee.

KLINGEMAN, Justice.

This is a suit for accidental death benefits under a group life insurance policy. Trial was to a jury. Plaintiff, Velma L. Heyward, appeals from an instructed verdict that she take nothing against defendant, Republic National Life Insurance Company, entered by the trial court at the conclusion of plaintiff's evidence. Plaintiff is the beneficiary under such policy which covered her husband, Bennie T. Heyward, who was an employee of the City of San Antonio at and before his death. Bennie T. Heyward was shot to death September 23, 1973.

The policy here involved provided life insurance coverage based upon the annual salary of the employee and also accidental death insurance in the amount of $12,000 under an accidental death rider. It is undisputed that the life insurance benefits were paid to plaintiff by defendant, and that defendant had refused to pay the accidental death benefits.

The pertinent portions of the policy here involved are summarized as follows:

ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE

'If a Person, while insured under this Section of the Group Policy sustains an injury effected solely through external, violent and accidental means and as a result thereof, directly and independently of all other causes, suffers a loss specified below within ninety days following the date of the injury, the Company, subject to all provisions of the Group Policy, will pay (a) the Principal Sum for a loss of life; . . .

LIMITATIONS APPLICABLE TO ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE.

Benefits shall not be payable for any loss to which a contributing cause is

(a) self-inflicted injury or self-destruction while sane or insane; or . . .

(e) participation in or as the result of the commission of a felonious act.'

By one point of error, plaintiff complains that the trial court erred in granting defendant's motion for instructed verdict at the conclusion of plaintiff's evidence, and in entering a judgment that plaintiff take nothing because plaintiff's evidence was sufficient to establish a Prima facie case for recovery under the policy.

By counterpoints defendant asserts that the trial court correctly granted defendant's motion for instructed verdict at the conclusion of plaintiff's evidence because: (a) there was no evidence proving that death was effected solely through accidental means; (b) the evidence was undisputed that a contributing cause of death was the result of the commission of a felonious act; (c) the plaintiff failed to show by competent evidence Bennie Heyward sustained an injury "effected solely through external, violent and accidental means and as a result thereof, directly and independently of all other causes,' Heyward died.'

An examination of the entire record reveals the following evidence: (3) the insurance policy, the pertinent portions of which have been heretofore summarized; (b) a certificate of death of Heyward stating that he died on September 23, 1973, and that the immediate cause of his death was a gunshot wound to the heart; (c) a medical examiner's report made by Mr. James I. Duff, pathologist, who performed the autopsy, stating: (1) the cause and means of Heyward's death was 'multiple gunshot wounds of the chest and back with wounds of the heart, liver, right kidney, and right adrenal; .. . The manner is homicide.' (2) that Heyward was reportedly shot at his home address at 311 Vine Street at approximately 1:00 a.m. on September 23, 1973; (3) the autopsy report describes in some detail an external and internal examination, describing five bullet wounds and their locations; that there were also numerous lacerations made by a sharp object over the forehead, left face, ear and right eye; that the lacerations have sharp edges and suggest entry by knife; that there were also two deep 12 inch lacerations in the back; (4) the report concludes that Bennie Heyward died of gunshot wounds to the chest and back with wounds to the heart, liver, right kidney and right adrenal and that the manner is homicide; (d) Dr. James I. Duff, a pathologist, testified that he performed an autopsy on Heyward on September 23, 1973, and that he prepared the report above summarized; that he found five gunshot wounds in the body; and that Heyward actually died from loss of blood. He further testified that in his examination he recovered a single 357 Magnum bullet. He also testified that in addition to the gunshot wounds he found some lacerations that could have been caused by a knife. He testified that the manner of death was homicide and that Heyward was shot by another person. He excluded the possibility that Heyward shot himself, and he ruled out suicide. (e) John R. Kaznowski testified that he is administrative assistant to the personnel director of the City of San Antonio and that on September 23, 1973, Bennie Heyward was covered by a policy of insurance by Group Policy No. 12212 and Certificate No. 3363. (f) Portions of depositions of James Edda Anderson and Oscar M. Anderson were introduced into evidence. They both testified that they lived at 311 Vine Street, but they both refused to answer any other questions on the grounds that any answer that they might give might tend to incriminate them. (g) Velma L. Heyward testified that she was the plaintiff in the case and that she was married to Bennie Heyward; that at the time of the death of Bennie Heyward she made a claim for insurance benefits; that she received the $3,000 basic life insurance benefits but that she did not ever receive any payments under the accidental death provision. (h) Rev. Antone Dykes testified that he was an ordained minister, and that he was acquainted with Bennie Heyward during his life-time and that his reputation for being a law-abiding citizen and a peaceful person was good.

This is an appeal from an instructed verdict. The courts of this state have repeatedly held that it is error to instruct a verdict where the evidence raises any material issue. No passing upon the question of authority of the trial court to instruct a verdict, the evidence must be considered most favorably in behalf of the party against whom the verdict is instructed. A pre-emptory instruction is warranted only where the evidence is such that no other verdict should be rendered. If there is any conflicting evidence in the record of probative nature, a determination of the issue is for the jury. Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); 3 McDonald, Texas Civil Practice, Section 11.28.2 (1970). If such evidence is of sufficient force that reasonable minds might differ as to the ultimate conclusion to be reached, the case should be submitted to the jury. Reed v. Hester, 44 S.W.2d 1107 (Tex. Comm'n App. 1932, holding approved); Culkin v. Nieman-Marcus Company, 354 S.W.2d 397 (Tex.Civ.App.--Fort Worth 1962, writ ref'd); Devereaux v. Smith, 213 S.W.2d 170 (Tex.Civ.App.--Waco 1948, writ ref'd n.r.e.).

Under the pleadings and the applicable authorities, the burden of proof was on plaintiff to prove that the insured's death resulted solely by accidental means; that it did not result from self-inflicted injury or self-destruction, and did not result from Heyward's participation in or as a result of the commission of a felonious act. Plaintiff asserts that she met such burden and that when she rested her case, she had introduced sufficient evidence, coupled with such presumptions as are recognized by law to support her claim. Defendant argues that there is no way five gunshot wounds from a revolver and numerous cuts with a knife could constitute a death effected solely by 'accidental means'; that under the evidence the death was either suicide, murder or justifiable homicide, and that Heyward was probably participating in a felonious act; that if an insured is intentionally killed, it cannot be an accident. We disagree.

The test of whether death is accidental is to be determined from the viewpoint of the insured and not from the viewpoint of the one who did the killing. Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W.2d 517 (1955); Great American Insurance Company v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.--Tyler 1971, writ ref'd n.r.e.). Ordinarily a death from an unprovoked homicide is a death resulting from accidental means within the terms of a life insurance policy. American National Insurance Company v. Garrison, 97 S.W.2d 534 (Tex.Civ.App.--Eastland 1936, writ dism'd); National Life and Accident Insurance Company v. Hodge, 244 S.W. 863 (Tex.Civ.App.--Texarkana 1922, writ dism'd).

The rule seems to...