International Travelers' Ass'n v. Melaun

• Decision Date: 30 January 1925
• Docket Number: (No. 116.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: INTERNATIONAL TRAVELERS' ASS'N v. MELAUN.
• Court: Texas Court of Appeals

270 S.W. 246

INTERNATIONAL TRAVELERS' ASS'N v. MELAUN.

(No. 116.)^*

Court of Civil Appeals of Texas. Waco.

January 30, 1925.

Rehearing Denied March 5, 1925.

Dissenting Opinion April 3, 1925.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Mrs. Adah Melaun against the International Travelers' Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.

Claude C. Westerfeld and Wm. F. Robertson, both of Dallas, for appellee.

STANFORD, J.

This case is before us on motion for rehearing. The motion is granted. All former opinions are withdrawn, and this and the concurring opinion of Special Chief Justice ROGERS are substituted as the opinion of the court in this case.

Action by Mrs. Adah Melaun, widow of Fred J. Melaun, deceased, against the International Travelers' Association on an accident insurance policy issued to the deceased, in which his wife, appellee, was named as beneficiary. The case was tried before the court without a jury. From a judgment in favor of plaintiff, defendant appeals.

On the material issues in the case we make the following

Findings of Fact.

The deceased, on April 16, 1922, accidentally slipped and fell on the wet and slippery concrete floor of his garage, striking his head with great force on said concrete floor, inflicting bodily injuries which directly, independently, and exclusively of all other causes, resulted in his death on May 26, 1922. About the time he received said injury, his wife, appellee herein, was confined, and soon after said confinement was compelled to undergo a serious operation, confining her to her bed for more than a month, and at the time of her husband's death she was not able physically or mentally to do anything, and continued in such condition for some time after her husband's death.

The deceased died at his home, 1920 Forrest avenue, Dallas, and the day after his death an autopsy was made upon the body of the deceased at an undertaking establishment, where the body had been taken to be prepared for burial. Dr. Marshall, the family physician, who attended the deceased, Fred J. Melaun, during his last sickness, gave as the cause of his death cerebral hemorrhage, resulting from a blow or wound on the head. The brothers or father of the deceased indicated to the doctor that they wanted an autopsy. They seemed to question the doctor's statement as to the cause of death, and to satisfy them the doctor had the autopsy made at said undertaking establishment. There is no evidence that appellee was consulted about said autopsy, or that she knew anything about it until after it was done. There were three physicians took part in said autopsy. Two of them testified on the trial without objection. The third was not called to testify.

The autopsy, as far as the record shows, had no relation to any question of insurance on the life of the deceased; in fact, we conclude from the record that neither the doctors who performed said autopsy nor the brothers or father of the deceased who suggested same knew that the deceased had any insurance. At the time of the death of her husband, appellee knew that her husband had an insurance policy, but did not know it was in force, and knew nothing about the terms of same, and never knew it was in force until the following Tuesday, the day after his burial.

On June 9th appellant furnished blanks to be used in making proof of death, one by the beneficiary, one by the undertaker, one by the person or persons who witnessed the accident, and the other by the attending physician, and also requested a full statement from the physician who was in charge when the autopsy was held, all of which was furnished appellant on June 18th. Appellant never asked for a second autopsy, and never denied liability on the ground that its representatives were not notified in time to be present and participate in the one that was held, until July 3, 1922. At the time the autopsy was had, appellee had no claim pending, and neither appellee nor any of her relatives knew she would have any claim. The failure to receive notice of said autopsy cannot be attributed to any bad faith or improper motive on the part of any one. Neither did such failure result in any injury to appellant.

Opinion.

Appellant makes no question as to the sufficiency of the pleadings to raise all issues made by the evidence. By its assignments of error 6, 11, and 15, appellant complains of the admission in evidence of certain statements made by the deceased soon after his alleged fall and injury, or immediately after he had regained consciousness, to the effect that he slipped and fell and the back of his head struck on the concrete floor, and complained that his head hurt very badly and that he was in a dizzy condition, etc., on the ground that same was hearsay and was self-serving declarations. In our opinion, this testimony was properly admitted. It was part of the res gestæ. However, if the trial court was in error in admitting any of said statements, under the facts of this case it was harmless error and affords no reason for reversal, because legal evidence, conceded to be properly admitted — at least, not objected to by appellant — was ample to support the finding of the court that the deceased did accidentally fall, striking his head on said concrete floor, seriously injuring his head, from the effects of which he died. This being true, and the case having been tried before the court, the presumption is that the trial court based his judgment on such legal, competent evidence, and discarded all illegal evidence, if there was any admitted. Appellant's sixth, eleventh, and fifteenth assignments are overruled. Gainesville Water Co. v. City of Gainesville, 57 Tex. Civ. App. 257, 122 S. W. 959; Morris v. Moon (Tex. Civ. App.) 120 S. W. 1063.

In its assignments 7, 9, and 10, appellant complains of the admission of evidence to the effect that at the time of the death of her husband, and at the time the autopsy was performed, appellee was not physically or mentally capable of doing anything, upon the ground that said evidence was irrelevant and immaterial. If appellee was in such condition physically and mentally that she was incapable of doing anything, then the autopsy was performed without her consent and she was not responsible for its having been performed, and the doing of something to which she did not consent and over which she had no control could not affect her rights. This evidence was admissible. Appellant's assignments 7, 9, and 10 are overruled. O'Brion v. Columbian National Life Insurance Co., 119 Me. 94, 109 A. 379, and cases cited.

In its assignment No. 8, complaint is made of the admission of the evidence of appellee to the effect that she did not know the policy was in force until after the deceased was dead and buried, etc., upon the ground that same was irrelevant and immaterial and that she was charged with knowledge of the contents of said policy; but the record discloses that the policy would not show whether the premiums had been kept paid up, and to ascertain this fact inquiry had to be made at appellant's office. This evidence was admissible to rebut any presumption of bad faith on the part of appellee, her attorney, or any of her relatives in anything they may have done or may have failed to do with reference to said autopsy. We overrule appellant's eighth assignment.

By its seventeenth assignment of error, appellant contends that there is no direct legal evidence in the record showing that said Fred J. Melaun's death was the result of injuries received through "violent, external and accidental means, independent of all other causes." The evidence is undisputed that Fred J. Melaun, prior to his injury, was a strong, healthy young man, about 30 years of age, nearly 6 feet tall and weighed about 200 pounds; that his garage had overflowed and the water had receded, leaving sediment covering the concrete floor of said garage, rendering it wet and slippery; that while his garage was in this condition—trash over it and being wet and slippery — on or about April 16, 1922, he was cleaning a large machine, while Clarence Green, a negro, was moving tools out to wash them, when Melaun's feet slipped from under him and he fell. Clarence ran to him and found him on the floor, in an unconscious condition. He was carried into the office and lay there some 30 minutes before he fully regained consciousness. He was carried home, confined to his bed for some time; then seemed to improve a little; then grew worse until he died on May 26th. The attending physician testified he died of cerebral hemorrhage, caused by a fall or blow on the head. Appellant offered no evidence in rebuttal. The evidence was ample to support the judgment of the trial court. We overrule appellant's seventeenth assignment.

Appellant's fifth assignment is as follows:

"Because the judgment is contrary to the law and the evidence in the case, in that, clause 8, article 9, of the policy held by said Fred J. Melaun provides: `The association, or its representatives, shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of the claim hereunder, and if an autopsy be made, the association shall be given timely notice thereof and the right and opportunity for its representatives to attend and participate.' And that provision 6 of article 10 of said policy is as follows: `Strict compliance on the part of the insured and the beneficiary with all provisions of this policy is a condition precedent to recovery hereunder.'

"That the uncontroverted evidence shows that the deceased, Fred J. Melaun, died on May 26, 1922, and was buried on the 29th day of May, 1922, and that an autopsy was held upon said Fred J. Melaun the day after his death, and that no timely notice or pretended timely notice of said autopsy was given to the...