Maryland Casualty Co. v. Glass

• Decision Date: 09 April 1902
• Parties: MARYLAND CASUALTY CO. v. GLASS.
• Court: Texas Court of Appeals

67 S.W. 1062

MARYLAND CASUALTY CO. v. GLASS.

Court of Civil Appeals of Texas.

April 9, 1902.

Appeal from district court, Dallas county; T. F. Nash, Judge.

Action by Eula L. Glass against the Maryland Casualty Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. J. J. Smith, for appellant. Turney, Lewis & Lewis, for appellee.

NEILL, J.

This appeal is from a judgment rendered in favor of appellee against appellant on an accident policy for $2,000. The policy sued upon contains the following provisions: "(1) In consideration of the warranties made in the application for this policy (copy of which is indorsed on the back hereof), and of ten and 00/100 dollars, the Maryland Casualty Company, of Baltimore, Maryland, hereinafter called the `Company,' does hereby insure M. E. Glass, of Houston, in the county of Harris and state of Texas, hereinafter called the `Assured,' by occupation commercial agent, classified by the company as `A' special, for the term of twelve months, beginning on the twenty-seventh day of March, 1900, at 12 o'clock noon, and ending on the twenty-seventh day of March, 1901, at twelve o'clock noon, standard time, in the amount of two thousand dollars, principal sum, and weekly indemnity of ten dollars, against bodily injuries sustained through external, violent, and accidental means as follows: If death shall result from any such injury, independent of all other causes, within ninety days from the happening of the accident causing such injury, the company will pay the principal sum above specified to Mrs. Eula L. Glass, wife of the assured, if surviving." "(5) This insurance does not cover disappearances, nor injuries, fatal or otherwise, resulting from poison, or anything accidental or otherwise taken, administered, absorbed, or inhaled (anæsthetics administered by a regular physician excepted); nor injuries, fatal or otherwise, received while or in consequence of having been under the influence of or affected by or resulting directly from intoxicants, narcotics, vertigo, sleep-walking, fits, hernia, or any disease or bodily infirmity. But it is understood this policy covers the assured according to the terms thereof in the event of his injury from freezing, sunstroke, drowning, or choking or swallowing." The application of M. E. Glass in writing for said policy attached to and made a part thereof contains the following: "I hereby apply for insurance against bodily injuries caused solely by violent, external and accidental means, to be based upon the following statement of facts, which I warrant to be true." It is undisputed that the assured died on the 14th of April, 1900, while undergoing a surgical operation for appendicitis; that, preparatory to and during the operation, chloroform, an anæsthetic, was administered him by a regular physician, and that he was under the influence of it when he expired. The only question of fact to be determined is, did his death result from an injury sustained through chloroform, independently of all other causes? The jury having found for the appellee upon this issue, their verdict shall not be disturbed if the evidence is reasonably sufficient to support their finding. If the evidence does not reasonably tend to support the verdict, the judgment entered upon it should be reversed.

Before considering the evidence upon this question, we will state our understanding of the law which should guide and govern us in its solution. It will be noted that by the fifth paragraph of the policy "anæsthetics administered by a regular physician" are excepted from such injuries as are not covered by the insurance. It may, therefore, so far as this case is concerned, be regarded as an insurance against death resulting from chloroform, independent of all other causes. The burden of establishing the fact that the death of M. E. Glass resulted, independent of all other causes, from chloroform administered to him, is on the plaintiff. In other words, she must prove that the anæsthetic was proximately the sole cause of his death. If his death was caused by it alone, the appellant, by the policy, is liable to the appellee in the principal sum therein specified. But if he was afflicted with disease which caused or directly contributed to his death, the company would not be liable, though chloroform might have been a cause concurring with his affliction in producing death. If he was suffering from appendicitis, as is shown by the indisputable evidence, and if the anæsthetic would not have caused his death had it not been for such affliction, but he died because the chloroform aggravated the effects of the disease, or appendicitis aggravated the effect of the drug, the company would not be liable under its contract. For in either event appendicitis and chloroform would be concurring and inseparable agents proximately contributing to his death, and it...