Merryman v. Employers National Life Insurance Co.
| Decision Date | 25 May 1967 |
| Docket Number | No. 6916,6916 |
| Citation | 416 S.W.2d 609 |
| Parties | Oscar Colquitte MERRYMAN, Appellant, v. EMPLOYERS NATIONAL LIFE INSURANCE COMPANY, Appellee. . Beaumont |
| Court | Texas Court of Appeals |
R. E. McDaniel, Winnie, for appellant.
Keith, Mehaffy & Weber, Beaumont, for appellee.
This is a suit upon an accident insurance policy. Trial was by jury, but at the close of plaintiff's evidence, the case was withdrawn from the jury and judgment rendered for defendant. The parties will be referred to here as they were in the trial court.
The evidence shows that Chambers County carried a group insurance policy for the benefit of its employees with the defendant. Plaintiff was employed as a deputy sheriff and sustained a broken leg while making an investigation. This injury resulted in the leg having to be amputated. Plaintiff brought this suit for the loss of such leg.
The only question in this case is one of law in construing the policy to determine whether plaintiff had the burden of proof to show that the loss of his leg was through accidental means solely and independently of all other causes. If this burden was upon plaintiff then the trial court properly rendered judgment for defendant, as the uncontradicted evidence shows that plaintiff had osteomyelitis in the leg which was amputated, since he was nine years of age, and that the amputation resulted from both the fracture and the diseased condition of the leg.
Plaintiff contends the burden was upon defendant to plead and prove that the loss of the leg was partially caused by the diseased condition, and that defendant's failure to plead specifically such exception under the policy precluded defendant from raising such point. This is in line with the general rule that an insurance company must specially plead any limitation or exception relied upon by it as a defense. Rule 94, Texas Rules of Civil Procedure. The defendant in this case had a general denial and a special denial as follows:
'In this regard, Defendant specifically denies that the loss for which Plaintiff seeks recovery occurred by reason of a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means.'
The pertinent part of the policy of insurance in question reads as follows:
'SECTION 10. ACCIDENTAL DEATH AND DISMEMBERMENT BENEFITS FOR EMPLOYEES
1. Benefits Payable
If an employee, while insured for benefits under this Section, suffers any one of...
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