Maryland Casualty Co. v. Hudgins

• Decision Date: 16 November 1903
• Citation: 76 S.W. 745
• Parties: MARYLAND CASUALTY CO. v. HUDGINS.
• Court: Texas Supreme Court

76 S.W. 745

MARYLAND CASUALTY CO. v. HUDGINS.

Supreme Court of Texas.

November 16, 1903.

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

Action by Sallie N. Hudgins against the Maryland Casualty Company. Judgment for plaintiff affirmed by Court of Civil Appeals (for opinion, see 72 S. W. 1047), and defendant brings error. Reversed and rendered.

Baker, Botts, Baker & Lovett and J. S. McEachin, for plaintiff in error. Sheppard, Jones & Sheppard, for defendant in error.

BROWN, J.

On October 6, 1900, the Maryland Casualty Company, a foreign corporation doing business in Texas on a permit from the state, issued and delivered to William T. Hudgins a policy of accident insurance which contained these stipulations: "The Maryland Casualty Company, Baltimore, Md., hereinafter called the company, does hereby insure Wm. T. Hudgins, of Texarkana, in the county of Bowie, and state of Texas, hereinafter called the assured, by occupation a lawyer, classified by the company as `A Spl.,' for the term of twelve months, beginning on the 6th day of October, 1900, at twelve o'clock noon, and ending on the 6th day of October, 1901, noon, standard time, in the amount of five thousand dollars, principal sum, and $25.00 weekly indemnity against bodily injuries, sustained through external, violent and accidental means, as follows: 1st. 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. Sallie N. Hudgins, wife of the assured, if surviving, otherwise to the legal representatives of the assured. * * * This insurance does not cover * * * injuries fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled."

Mrs. Sallie N. Hudgins, the beneficiary in the said policy, instituted suit in the district court of Bowie county, and by appropriate allegations set up the making and delivering of the policy, her right to maintain the suit, and the death of William T. Hudgins, alleging the facts in connection with the said death, and the causes which brought it about, as follows: "That while said policy was in full force and effect, according to the face and reading thereof, to wit, on October 28, 1900, the said Wm. T. Hudgins did receive a bodily injury through external, violent, accidental means, from which, independently of all other causes, the said Wm. T. Hudgins died on November 1, 1900; that the nature and character of said accident to the said Wm. T. Hudgins, and the injury arising therefrom and causing his death, were as follows: That on Oct. 28, 1900, the said Wm. T. Hudgins ordered, among other things, for his dinner, some raw oysters; that some of said oysters were unsound and spoiled; that the said Wm. T. Hudgins accidentally ate one or two of said oysters, and soon thereafter discovered that they were unsound and spoiled; that at the time he ate them he did not know that they were unsound and spoiled; that had he known that said oysters were unsound and spoiled before he ate them he would not have eaten them; that as soon as he detected their unsound and spoiled condition he quit eating them; that a few hours after he had eaten said unsound and spoiled oysters his stomach began to cramp him, and pains seized him in his bowels and stomach; that he became sick at his stomach, vomited, and passed bloody mucus actions from his bowels; that said unsound and spoiled oysters had passed into his intestines, and inflamed his bowels to such an extent that they were obstructed and prevented from performing the functions essential to the maintenance and sustenance of life; that he steadily and rapidly grew worse, until he died on November 1, 1900, from the effects of eating said unsound and spoiled oysters accidentally, and from the effects of said unsound and spoiled oysters lodging in his intestines accidentally, the one or both of said accidents being the proximate cause of his death."

Defendant answered by a general demurrer, by special exceptions, and a general denial, and specially pleaded as follows: "And for further answer defendant says that said policy contains a stipulation that said policy does not cover injuries, fatal or otherwise, resulting from poison, or anything accidentally or otherwise taken, administered, absorbed, or inhaled, and that, if said unsound or spoiled oysters caused the death of said Wm. T. Hudgins, it was because said spoiled oysters contained ptomaine poison, and that therefore defendant is not liable, and plaintiff ought not to recover, and of this it puts itself upon the country." The evidence established the allegations of the petition as to the manner of Hudgins' death, but the facts need not be repeated.

Upon a trial before a jury, after the evidence was introduced, the defendant in the court below filed the following demurrer to the evidence and motion for instruction: "Now comes the defendant, by Webber & Webber and Dan T. Leary, its attorneys, and says the evidence offered herein and introduced by the plaintiff fails to show any right for plaintiff to recover herein, and defendant demurs to the evidence of plaintiff, and says the same is not sufficient to entitle plaintiff to a judgment. Wherefore the defendant prays that the court instruct the jury to return a verdict in favor of the defendant." The court refused the request to instruct the jury to find for the defendant, and proceeded with the trial, submitting the issues to the jury, and verdict was rendered for the plaintiff for the amount of the policy, with interest thereon, which judgment was by the Court of Civil Appeals affirmed.

The Court of Civil Appeals held that the answer specially set up that the deceased died from ptomaine poison, and under such answer the defense that the oysters were voluntarily taken into the stomach, and that death ensued therefrom, was not admissible. The answer of the defendant set up the clause excepting from liability death or injury arising from poison, or anything taken, etc., and alleged, that if the oysters taken or swallowed by the deceased caused his death, then it was because the said oysters contained "ptomaine poison." The word "because" marks the means by which death was produced, and not the reason why the defendant is not liable; but the answer continues, "and therefore the defendant is not liable," etc., which refers to all of the facts set up in the answer as...