Kemper v. Police & Firemen's Ins. Ass'n, 1508-5803.

• Decision Date: 06 January 1932
• Docket Number: No. 1508-5803.,1508-5803.
• Citation: 44 S.W.2d 978
• Parties: KEMPER v. POLICE & FIREMEN'S INS. ASS'N.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

44 S.W.2d 978

KEMPER v. POLICE & FIREMEN'S INS. ASS'N.^*

No. 1508-5803.

Commission of Appeals of Texas, Section A.

January 6, 1932.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Thekla Kemper against the Police & Firemen's Insurance Association. To review a judgment of Court of Civil Appeals [28 S.W.(2d) 1111] reversing judgment for plaintiff, plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and judgment of District Court affirmed.

Charles T. Haltom, of San Antonio, for plaintiff in error.

Boyle, Wheeler, Gresham & Terrell, of San Antonio, for defendant in error.

CRITZ, J.

We refer to the parties to this suit in the order in which they appeared in the district court; to Mrs. Kemper as plaintiff, and the insurance association as defendant.

The plaintiff sued the defendant, a fraternal benefit association, duly incorporated, to recover $2,000 alleged to be due as insurance on the life of William H. Kemper, deceased husband of the plaintiff, on a contract of insurance issued by the defendant to the deceased during his lifetime, in which certificate the plaintiff was named beneficiary. Trial in the district court with a jury resulted in a verdict and judgment for the plaintiff for the full amount of the policy. On an appeal by the defendant, this judgment was reversed by the Court of Civil Appeals and judgment rendered for Mrs. Kemper for $200. 28 S.W.(2d) 1111. Mrs. Kemper brings error. The policy of insurance made the basis of this suit contains, among others, the following provisions:

"Any and all such payments or liability to pay shall be and is in accordance with, subject to, each and all of the provisions of the by-laws of said association and of the provisions of any and all amendments, alterations and new issues of said by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed as soon as such amendments, alterations or new issues of said by-laws respectively are or may be duly adopted, and the said William H. Kemper hereby and by the acceptance hereof agrees to abide and be bound by said by-laws and each of them and by any and all lawful amendments, alterations and new issues thereof or of any of them."

"It is hereby agreed by the member holding this certificate that the certificate, the charter or articles of incorporation, the constitution and laws of the society and the application for membership and medical examination, signed by the applicant, with all amendments to each thereof, shall constitute the agreement between the society and the member and any changes, additions or amendments to said charter or articles of incorporation, constitution or laws duly made or enacted subsequent to the issuance of this certificate shall bind the member and his beneficiaries and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership."

"Whenever any member of this Association in good standing shall, through external, violent and accidental means, receive bodily injuries which shall, independently of all other causes, result within ninety days from and after the date of such accident, and independently of all other causes, in the death of said member, or of the loss of both legs, or the loss of both arms, or the loss of one arm and one leg, or the loss of an arm or a leg, or the irrecoverable loss of the sight of both eyes, or one eye, there shall be paid to said member, or to the beneficiary of said member in case of loss of life the following benefits. * * * If the Member's certificate is for $2,000 the Benefits shall be as follows:

"A. For loss of life $2,000.00 * * *

"* * * And provided further that the above Benefits for loss of life shall be payable only in the event that the disability resulting from said injury shall be total and immediate and shall be continuous from the time of the injury to the time of the death of said member."

"There shall be payable to the beneficiary named herein, at the death of said member, if living at the time of such death (except by accident) the sum of $200.00 within ninety days after receipt by the said association of satisfactory proof of the death of said member."

"I also agree that my physicians shall give evidence, whenever required, concerning any alleged injury or cause of death, and waive all provisions of the law to the contrary, and that I will permit the physician of this Association to make such examination as may be deemed necessary. And I further agree that in case I take additional accident insurance, I will notify this Association, failure to do which shall invalidate any claim on account of accidental injury received during such default."

The facts show that about January 31st, or early on February 1, 1928, William H. Kemper received injuries which resulted in his death about twenty days later. At the time of such injuries the policy was in full force, and the deceased in good standing as a member of the association.

With reference to the injury itself and its resultant effects, immediately and later, the evidence is, in law, sufficient to establish the following facts: That William H. Kemper was a captain in the city fire department at the time of his injury; that on the date above shown there was a fire in a drug store which was attended by the insured in his capacity as a fireman; that the fire was in the prescription room full of drugs of various kinds; that insured entered this room during the fire in the performance of his duties; that chemicals were used in fighting this fire; that the chemicals so used and the chemicals and drugs contained in the building, together with the heat, caused the burning building to be full of gas and fumes; that some of the men fighting the fire wore masks to protect themselves from these fumes and gas; that the insured wore no mask; that the gas and fumes were breathed by insured for about an hour; that insured vomited at the fire while he was fighting it; that when insured got back from the fire he was coughing and throwing up phlegm, and complained about his chest and throat, saying that they were hurting him; that insured worked as a fireman thereafter for several days; that during such period insured was at all times feeling badly, and his chest and throat were very sore and hurting him, caused by the effects of the gas and fumes he had breathed at the fire; that he was in this condition at all times from the time of the fire to the time of his death; that while he continued to work he was hoarse—"whisper-like"; that insured was sick from the time of the fire until his death some twenty days later; that insured finally went to the hospital about a week before his death, and there remained until he died; that at times between the time of the fire and the time he went to the hospital, while he was trying to carry out his duties, he would become so sick that he would have to go home, but would thereafter come back to his work; that at all times between the fire and his death insured was sick and feeling badly, and only with difficulty and effort kept up and going; that about thirteen days after the fire insured was sent to the hospital where he died in about a week; that deceased died of pneumonia, which was brought on and caused by breathing the fumes and gas at the fire; and that while pneumonia was the exciting cause of death, the predisposed cause was the gas irritation and inflammation of insured's lungs. In other words, to put it in simple language, the gas and fumes produced irritation and inflammation of the insured's throat, lungs, and respiratory organs, and these injuries culminated in pneumonia, from which the insured died. The testimony, taken as a whole, is amply sufficient in law to justify the jury in the fact conclusion that, while insured continued to go to work for several days after he received his injuries, he should not have done so, and during all such time was a sick man, who by his own will power was forcing himself to perform duties which he was too sick to perform.

With the evidence in the above condition, the jury found in response to relevant questions:

(a) That insured received the bodily injuries alleged by the plaintiff on the occasion of the fire; (b) that insured's death resulted from such injuries independently of all other causes; (c) that the injuries complained of resulted in total disability; (d) that such disability was immediate; (e) that such disability was continuous from the time of the injuries to the time of death.

Based on the above verdict, the trial court entered judgment for the plaintiff. The Court of Civil Appeals reversed this judgment and rendered judgment for the defendant, holding that this case is ruled by the holding of the Supreme Court in Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35. We think the Court of Civil Appeals is in error in this holding, and that the facts of this case are clearly distinguishable from the facts in the Wade Case. In the Wade Case, the opinion of the Court of Civil Appeals, which is found at 99 S. W. 877, 878, shows: "The evidence is undisputed that Bishop Green, while working at his occupation as a freight handler, on January 31, 1903, was physically injured by the weight of a heavy crate of glass being accidentally thrown upon him; and as the proximate cause of the injury he died on April 6, 1903. He received said bodily injury `through external violent and purely accidental causes,' which, as aforesaid, proximately resulted in his death. It was also shown that he was hurt on Saturday, about 2:30 o'clock p. m., January 31, 1903; that he laid off about 15 minutes and continued to work till 6 o'clock, when his work was done; and that he returned to his work the following Monday and continued at it until March 25th...