International Travelers' Ass'n v. Rogers

• Decision Date: 24 January 1914
• Citation: 163 S.W. 421
• Parties: INTERNATIONAL TRAVELERS' ASS'N v. ROGERS.
• Court: Texas Court of Appeals

163 S.W. 421

INTERNATIONAL TRAVELERS' ASS'N v. ROGERS.

Court of Civil Appeals of Texas. Dallas.

January 24, 1914.

Rehearing Denied February 14, 1914.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by E. M. Rogers against the International Travelers' Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Seay & Seay, of Dallas, for appellant. W. S. Bramlett and D. A. Frank, both of Dallas, for appellee.

TALBOT, J.

E. M. Rogers brought this suit against appellant to recover the sum of $1,000, alleging, in substance, that appellant was a corporation organized under the laws of Texas, and engaged, in its corporate name of International Travelers' Association, in the accident insurance business; that appellee was a member of said association, and held a policy of insurance issued by it; that through external, violent, and accidental means he had lost the entire sight of one of his eyes; and that under the terms of the policy he was entitled to recover therefor the amount sued for. In regard to the accident, the appellee alleges "that on or about February 29, 1912, while going along the streets of his home town, and during the time that the said accident insurance certificate was in full force and effect, plaintiff having complied with all the reasonable rules of the defendant, plaintiff was accidentally struck in the eye by a pebble, a piece of sand, dust, dirt, or some foreign substance, the nature of which plaintiff is not able more specially to set out, causing bodily injuries, which were caused solely and exclusively by violent, external, and accidental means, thereby causing inflammation and active ulceration, leaving a dense scar of the cornea over the entire normal pupil, and on account of which plaintiff has sustained the entire loss of the sight of said eye." Defendant, among other things not necessary to state, pleaded general and special demurrers, a general denial, and specially the following by-law of the association: "Or, if said accident shall result in the loss within ninety days thereafter of the entire sight of one eye, the member shall receive as indemnity one-fifth of the amount collected from one assessment, not exceeding in any event the sum of $1,000.00." Defendant also specially denied that the appellee had suffered the entire loss of the sight of his eye, but that he was only entitled to injuries of an ordinary character, as provided for in the policy and by-laws. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,000, from which the defendant appealed.

The controlling questions presented by the assignments of error for our determination are: (1) Was the evidence offered sufficient to warrant the jury's finding that appellee's eye was injured by external, violent, and accidental means? (2) Is the evidence sufficient to show that appellee, as a result of that injury, lost, within the meaning and contemplation of the by-law quoted above, and pleaded by appellant as a part of the contract made with appellee, the entire sight of his eye? We have reached the conclusions that both of these questions should be answered in the affirmative.

Touching the time and manner of the injury, appellee testified: "On February 27th I sustained an accident to my left eye. That was a warm, blustery day. In the portion of Denison that I was in on that day there is sand and gravel, and I sustained this accident at Denison. There was an obstacle that blew in my eye which was enough to cause pain; something like a cinder or gravel, and it caused my eye to smart and burn that afternoon. My eye had not bothered me until up to about 2:30 that afternoon. I got to Denison about 2 o'clock that day. Prior to that time I had not been where the sand was blowing. I had been in my office at Sherman prior to that time. The first notice of the injury to my eye was when it first burned, and it commenced to hurt me between 2 and 3 o'clock that afternoon. I did not have my eye treated by a specialist on that day, but subsequently I did. Right at the time I didn't pay much attention to it, but the smarting and burning increased during the afternoon; it got worse in the afternoon. I do not know what it was that went into my eye; but, whatever it was, the first attention I paid to it was between 2 and 3 o'clock. I went to a druggist on the morning of the 28th of February, and he gave me something to put in my eye. On the morning of the 29th I went to a specialist, and he examined my eye, and treated it. I do not know what it was that went into my eye. I know that something went into my eye some time that afternoon." Dr. O. C. Ahlers, a specialist on the diseases of the eye, testified that he treated appellee's eye, and that his books show that he began the treatment on the 29th day of February, 1912, and ceased on the 16th day of June, 1912. He further testified: "In determining the amount of vision a man has with his eye, or in determining the trouble caused by the introduction into the eye of some foreign substance, we have different methods. In the absence of any foreign object being found in Mr. Rogers' eye when he first came to me, I found, or rather it made me believe, that a portion of the cornea, the epithelium covering the light vision, the covering over the cornea was scuffed off, that is, the deeper layer was scuffed off over quite a large surface—probably a little over one-eighth of an inch in diameter, probably a little more than that. Those conditions were the result * * * of some foreign substance scraping that surface off; but I found no foreign substance in the eye at the time I made the examination. * * * Judging from the condition of the cornea that I found in Mr. Rogers' case, I would say that condition was not caused from any disease." This testimony of Dr. Ahlers, notwithstanding other competent eye specialists examined and testified concerning the condition of appellee's eye, is practically without contradiction, and, taken in connection with the testimony of the appellee, is amply sufficient to justify the conclusion that appellee's eye was injured by external and accidental means.

The second question is more difficult of solution. In relation to this question, the appellant requested the court to charge the jury, in effect, "that the word `entire' means all and whole of a thing," and that, unless they believed from the evidence that appellee had lost the entire sight of his eye, to return a verdict for the defendant. This charge was refused, and the jury instructed as follows: "If you find from the evidence that plaintiff, on or about the 27th day of February, 1912, did by some external, violent, and accidental means, and independent of all other causes, suffer the practical...