Lord v. Insurance Co. of North America

• Decision Date: 27 June 1974
• Docket Number: No. 18348,18348
• Citation: 513 S.W.2d 96
• Parties: Leslie Sheldon LORD, Sr., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
• Court: Texas Court of Appeals

Page 96

513 S.W.2d 96

Leslie Sheldon LORD, Sr., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.

No. 18348.

Court of Civil Appeals of Texas Dallas.

June 27, 1974.

Rehearing Denied Aug. 28, 1974.

Wm. Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.

Gregory S. C. Huffman, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Leslie Sheldon Lord, Sr., brought this action against Insurance Company of North America seeking to recover benefits provided by a policy of insurance issued to Lord's employer, General Tire & Rubber Company. Prior to date of trial Lord died and his cause of action was prosecuted to judgment by Marguerite E. Lord, as administratrix of the estate of Leslie Sheldon Lord, Sr., deceased. The insurance policy provided for payment of a principal sum of $100,000 'against loss resulting directly and independently of all other causes from bodily injuries caused by accident occurring while the policy is in force . . ..' The policy also provided that the principal sum would be payable after one year of continuous disability and if the insured is then permanently and totally disabled. The insurance company defended the action on two principal grounds: (1) That Lord had recovered substantially from the effects of his injury so that he was not permanently and totally disabled within the meaning of the policy, and (2) that Lord's disability was not due solely to the accident sustained by him on May 11, 1970 ¹ but was due in whole or in part to previous episodes of various diseases including heart failure, cirrhosis of the liver, diabetes and arteriosclerosis.

In answer to special issues the jury found that Lord was totally and permanently disabled following his accident on May 10, 1970 but that such disability did not result directly and independently of all other causes from bodily injuries caused by the accident of May 10, 1970. Based upon this verdict the trial court rendered judgment denying Mrs. Lord, the executrix, any recovery.

In points one through five inclusive, appellant contends that there was no evidence, or in the alternative, insufficient evidence, to support the jury's negative answer to special issues two and four, each being: ²

Do you find from a preponderance of the evidence that such disability resulted directly and independently of all other causes from bodily injuries caused by the accident on May 10, 1970?

The record revealed without dispute that on May 11, 1970 Leslie Sheldon Lord, Sr., then sixty-nine years old, and employed by General Tire & Rubber Company, sustained an accidental injury in his bathroom and as a result thereof suffered a compression fracture to his first lumbar vertebra. He instituted this suit against appellee insurance company on October 18, 1971 claiming a recovery under the terms of the policy. On May 30, 1973 Lord died. Apparently his death was not caused by or related to the injury of May 11, 1970. At the time of trial in Noivember 1973 Mrs. Lord, as administratrix, introduced the deposition of Lord and also her own testimony to the effect that Lord had never returned to work following his injury on May 11, 1970. She tendered no medical evidence tending to show that his continuous total disability was due solely to the accidental injury sustained by him on May 11, 1970.

Appellee produced testimony from medical experts to the effect that within three months following his accidental injury Lord had practically recovered from the effect of the compression fracture which had, at that time, united and healed. These medical witnesses said that in their opinion Lord had ceased to have disability as a result of the accidental injury. Appellee also introduced medical records and testimony of doctors which established that at the time of his accidental injury Lord had suffered from a number of ailments including Parkinson's disease, heart disease, diabetes, arthritis and arteriosclerosis. For example Dr. Kimmerling testified that he examined Lord in 1973 and at that time he found him to be suffering from Parkinson's disease, which was 'pretty far advanced' and which was Lord's most disabling affliction. Dr. Kimmerling stated that this Parkinson's disease was in no way related to the accidental injury of May 11, 1970. Dr. Kimmerling also testified that Lord was suffering from congestive heart failure which had existed over a long period of time and which was disabling to the extent that it would 'certainly limit his activities.' Dr. Webb testified that when he examined Lord in October 1970 he felt that the compression fracture had healed and that Lord had very little complaints with regard to his back at that time. He said that Lord could have returned to the same activity that he was doing insofar as the effect of his injury was concerned. Hospital records relating to various hospitalizations by Lord prior to his back injury indicated that he had been suffering from cerebral arteriosclerosis, osteoarthritis, heart diseases and liver ailments.

In the light of the testimony it is quite evident to us that there was ample evidence of probative force to support the jury's answers to both special issues two and four.

It is important to bear in mind that we are here dealing with an action which is brought upon a particular kind of insurance policy which is express in its terms that the loss payable thereunder must result 'directly and independently of all other causes from bodily injuries caused by accident . . ..' In Mutual Benefit Health & Accident Ass'n. v. Hudman, 398 S.W.2d 110, 112 (Tex.1965), the court pointed out that the limitation upon the cause of death or disability cannot be ignored because it was the basis of the agreement. The court then pointed out that 'independently' means 'solely,' 'only,' and 'standing alone.' In Stroburg v. Insurance Co . of North America, 464 S.W.2d 827, 828 (Tex.1971) the court considered the identical phrase we are concerned with, holding:

Under the provisions of Rule 94, Texas Rules of Civil Procedure, the plaintiff had the burden of proving not only that the death of his father resulted directly and independently of all other causes from bodily injuries caused by accident but also that it was not caused by and did not result from the ulcer and emphysema.

The defendant in that case had urged that the death of the insured had been caused in some measure by these two ailments, and the supreme court held that this placed the burden of proof on the plaintiff to negate these possibilities. In addition to Stroburg the supreme court has repeatedly held that the burden of producing evidence to demonstrate that the insured's losses were not attributable to the pleaded excluded hazards of the policy rested upon the insured. Sherman v. Provident American Ins. Co., 421 S.W.2d 652, 654 (Tex.1967); Hardware Dealers Mutual Ins. Co. v. Berglund, 393 S.W.2d 309, 311 (Tex.1965). See also Meyer v. Union Mutual Life Ins. Co., 483 S.W.2d 7 (Tex.Civ.App.--Dallas 1972), affirmed, 502 S.W.2d 676 (Tex.1973); Continental Casualty Co. v. Fountain, 257 S.W.2d 338 (Tex.Civ.App.--Dallas 1953, writ ref'd) and Robinson v. Aetna Life Ins. Co., 276 S.W. 900 (Tex.Com.App.1925, jdgmt. adopted).

The trial court correctly framed issues two and four to place the burden of proof upon appellant to secure a jury finding, based upon a preponderance of the evidence, that Lord's disability resulted directly and independently of all other causes from bodily injuries caused by the accident. We hold that appellant did not sustain his dual burden by bringing forward evidence of sufficient probative force to establish that the accidental personal injury was the sole and only cause of his disability and also to negate the causal connection by the non-covered ailments. We overrule appellant's 'no evidence' and 'insufficient evidence' points of error.

In point of error number five appellant argues that appellee's medical evidence concerning causation and continuance of total disability was not relevant nor admissible because the same was not based upon a reasonable medical probability. Appellant points to one or more instances in the testimony where the medical expert states that the diseased condition being discussed 'could' have caused the disability.

It is, of course, well settled that for a doctor's testimony to be proper evidence of causal connection it must establish a reasonable medical probability that something had a given effect, and not that it was only a mere possibility. Otis Elevator Co. v....