Life & Casualty Insurance Co. of Tenn. v. Martinez
| Decision Date | 13 February 1957 |
| Docket Number | No. 13111,13111 |
| Court | Texas Court of Appeals |
| Parties | LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellant, v. Norberto MARTINEZ, Appellee. |
Eskridge, Groce & Hebdon, Frank P. Christian, San Antonio, for appellant.
Chas. T. Haltom, San Antonio, for appellee.
Norberto Martinez, as the beneficiary of his minor son under an accident policy, sued and recovered judgment against insurer, Life & Casualty Insurance Company of Tennessee. Insured was shot and killed by a policeman while insured was fleeing from the officer, and the trial court held that he died from violent, external and accidental means within the terms of the accident policy. Insurer appealed from the judgment on the point that the trial court's findings show that the court erroneously viewed the shooting from the viewpoint of the policeman rather than from the viewpoint of the insured. There was no jury.
A little after midnight, October 13, 1955, insured and two youthful companions were driving in a vehicle without lights on a San Antonio street. A uniformed patrolman drove, by, in a well-identified police car, passed them, then made a U turn to investigate the car. Insured, the driver, sought to escape from the policeman by speeding, and the policeman gave chase. The policeman, on about three occasions, drew parallel with the insured's vehicle but was unable to force it to the curb. After failing to force the car to the curb, and after about eleven blocks of pursuit with the red emergency light on, the policeman fired a warning shot in the air. At some undetermined point between the eleventh and twentieth blocks he fired a second shot, and at the twentieth block he fired the fatal shot into the insured's head. The policeman found insured's two friends down on the floorboard after the fatal shot and after the car came to a stop. One of the boys stated that he had begged insured to stop because the police were shooting. The policeman was shooting with his left hand, and one shot, probably the second one, hit the dashboard.
The court filed two conclusions of law. The first was that the policeman killed insured by firing upon him without justification. The other was that insured's death was not a result of his own voluntary behavior. Insurer objected to the conclusions and requested the court to conclude that insured should have anticipated that if he continued to flee from the police he would in all reasonable probability be killed. The court took no action, either by way of granting or refusing the request.
(1) The legal test applied by the trial court, as manifested by the two conclusions, was wrong and at variance with the correct rule. For that reason, and also because the court would not file the additional requested conclusion, we can indulge no presumption in support of the judgment. Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141.
(2) The court's first conclusion is...
To continue reading
Request your trial
-
Republic Nat. Life Ins. Co. v. Heyward
...reasonably prudent man to believe that Garrett would shoot him if he continued the assault.' 127 S.W.2d at 566. In Life & Casualty Insurance Co. v. Martinez, 299 S.W.2d 181 (Tex.Civ.App.--San Antonio 1957, no writ), the insured was shot by a police officer while fleeing from the officer. Th......
-
Republic Nat. Life Ins. Co. v. Heyward
...from his viewpoint, should have anticipated that in all reasonable probability he would be killed. See Life & Casualty Insurance Company of Tennessee v. Martinez, 299 S.W.2d 181 (Tex.Civ.App. San Antonio 1957, no The evidence conclusively established that the insured died as a result of the......
-
Wilson v. O'Connor
...141, 145 (1947); E. F. Hutton & Co. v. Fox, 518 S.W.2d 849, 855-56 (Tex.Civ.App. Dallas 1974, writ ref'd n. r. e.); Life & Casualty Ins. Co. v. Martinez, 299 S.W.2d 181, 182 (Tex.Civ.App. San Antonio 1957, per Pope, J., no writ). Since the findings of fact and conclusions of law show that t......
-
Jones v. Smith, 14-08-00639-CV.
...E.F. Hutton & Co. v. Fox, 518 S.W.2d 849, 856 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.) (on mot. for reh'g); Life & Cas. Ins. Co. of Tenn. v. Martinez, 299 S.W.2d 181, 182 (Tex.Civ. App.-San Antonio 1957, no writ). Here, it is undisputed that Newell did not own the property after March ......