Metropolitan Life Ins. Co. v. Funderburk

• Decision Date: 04 April 1935
• Docket Number: No. 2689.,2689.
• Citation: 81 S.W.2d 132
• Parties: METROPOLITAN LIFE INS. CO. v. FUNDERBURK.
• Court: Texas Court of Appeals

Page 132

81 S.W.2d 132

METROPOLITAN LIFE INS. CO. v. FUNDERBURK.

No. 2689.

Court of Civil Appeals of Texas. Beaumont.

April 4, 1935.

Rehearing Denied March 10, 1935.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Mrs. Katie L. Funderburk against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

W. T. McNeill, of Beaumont, for appellee.

COMBS, Justice.

Appellee was plaintiff and appellant defendant in the trial court.

As an employee of Magnolia Petroleum Company, W. O. Funderburk was insured by the defendant under a group policy which entitled the plaintiff, as his beneficiary, to $1,600 in case of his death from any cause, the contract providing also for a double indemnity in the event the insured's death should result "directly and independently of all other causes" from bodily injuries sustained solely through violent, external, and "accidental means." It was further stipulated by way of exception that such double indemnity insurance should not cover "death or other loss caused wholly or partly by disease or bodily or mental infirmity." On August 1, 1932, while working inside the dome of an oil tank car, insured suffered a heat stroke and died the same day. The defendant paid to Mrs. Funderburk $1,600, the amount of its liability for nonaccidental death, but denied liability for double indemnity, contending that insured's death resulted partly from disease or bodily infirmity. This suit followed, and on a trial to a jury resulted in a judgment in favor of plaintiff for $1,600 as for accidental death, plus statutory penalty of 12 per cent. and $400 attorney's fee. The penalty and attorney's fee features of the judgment are not complained of.

It is not disputed that the deceased suffered the heat exhaustion, nor does the defendant deny the general proposition that death from heat exhaustion is "accidental." Its contention here is that plaintiff failed to bring her claim for double indemnity within the provisions of the contract in that, as it contends, the evidence failed to raise the issue that the deceased's death resulted solely and independently of all other causes from the heat exhaustion.

Therefore, the controlling question, presented by appellant's first four propositions, is the sufficiency of the evidence to sustain the jury's affirmative answer to the following issue: "Do you find from a preponderance of the evidence that the death of the deceased, W. O. Funderburk, resulted solely, directly and independently of all other causes from the heat exhaustion which he sustained?"

The facts bearing upon the issue, so far as necessary to recite here, are as follows: Mr. Funderburk was fifty-five years of age. He was employed as a riveter and caulker and had been so employed for some eight years. He was an active, energetic worker. On the morning of his death he came to work at the usual time, and appeared to be cheerful and in good health; he went to work with an air riveting machine inside the dome of an oil tank car; because of the narrow space in which he had to work he was required to work in a cramped position. After using the riveting hammer for some time, he came out of the car and changed that tool for a caulking tool, which operated from the same air line, and went back inside the dome of the car and resumed work. After having worked altogether for some hour and a half, his fellow employee noticed that his machine had stopped work. He went to the car to see what the trouble was and Mr. Funderburk had come out of the car and was standing on the ground leaning against the running board; he was very pale and apparently in pain. The workman said to him, "You have got too hot," and he said, "Yes." He was sent to the emergency station where treatment was administered to him by a doctor and nurses. As shown by the medical testimony, he was suffering from heat exhaustion, the symptoms being typical of such condition. He was later removed from the emergency station to his home where he developed convulsions and his death followed in a few hours.

On the same day, but after the body was embalmed, Dr. H. B. Williford, a pathologist, performed an autopsy. As shown by his testimony, his findings were: (1) Generalized arteriosclerosis, (2) Chronic fibrous myocarditis, (3) Fatty infiltration of the heart, (4) Coronary sclerosis, (5) Aortic atheromata. Dr. Williford had never examined Funderburk during his lifetime and did not know him, but based upon the autopsy he said that it indicated to him that deceased was a man of inferior ability; that usually a man suffering from such conditions as he found to exist would endanger his life by exerting or straining. Dr. English, company physician, was present during the autopsy. Dr. English also testified that he had made a routine examination of Funderburk some time before his death and that his blood pressure was high. He did not recall just when the examination was made and he appeared to have no record of it. It was the opinion of these doctors, witnesses for defendant, that the conditions disclosed by the autopsy contributed to the death of the deceased by rendering him more susceptible to death from heat exhaustion. Both admitted on cross-examination that a normal man might die from heat exhaustion such as that suffered by the deceased, but stated that it was not the usual thing.

Dr. L. C. Powell, a witness for plaintiff, testified that it depended altogether on the extent of impairment as to whether the conditions described by the pathologist contributed to Funderburk's death; that it was possible for a man to live to a ripe old age with all of the conditions present which were described by Dr. Williford; that hardening of the arteries, for instance, is a natural concomitant of advancing age and is present to a greater or less extent in all persons past middle life. Mr. Keith Hotchkiss, an undertaker and embalmer, who testified that he had had two years of college study in pathology and had assisted in the performance of some seven hundred autopsies, testified that the embalming fluid, by its chemical action would produce a hardening of arteries identical with that produced by arteriosclerosis and that many embalming fluids would produce deposits in the tissues identical in appearance with calcium deposits; and that only a chemical analysis would reveal the difference.

The widow testified that Mr. Funderburk had been hale and hearty and active, had not complained of dizziness, nervousness, or sleeplessness or any of the conditions which the medical testimony showed naturally accompanies the existence of the physical infirmities described by the pathologist when they exist in an advanced or dangerous degree. The testimony of Mr. Funderburk's fellow workmen showed without controversy that he had been an active energetic worker, and that on the occasion in question he had been doing the heavy work of a riveter and caulker in the tank car for an hour and a half before he was overcome by the heat exhaustion. A temperature reading taken in the car in which he worked something like an hour after his stroke showed the temperature at the bottom of the tank car to be 112 degrees and in the dome 114 degrees Fahrenheit. There was, of course, a lack of circulation of air in the tank and the facts fully warrant the conclusion that a perfectly well and normal man might have suffered heat exhaustion and death as a result of working under the conditions under which Funderburk worked on the morning of his death.

We think the testimony ample to sustain the jury's finding that the death of the deceased did result solely, directly, and independently of all other causes from the heat exhaustion which he sustained. The rule is now well established that the burden of proof was upon the plaintiff to plead and prove that the death of the insured was occasioned by accidental means and that it did not come within the exception named in the policy. Washington Fidelity National Ins. Co. v. Williams (Tex. Com. App.) 49 S.W. (2d) 1093; Travelers' Ins. Co. v. Harris (Tex. Com. App.) 212 S. W. 933; American Ins. Co. v. Maddox (Tex. Civ. App.) 60 S.W.(2d) 1074. But we think the plaintiff fully met the burden of proof resting upon her.

Appellant insists that the testimony of the pathologist as to his findings, and the testimony of himself and Dr. English that the conditions which he found contributed to the death of the deceased constitute not mere opinion evidence but instead amount to statements of fact; that such evidence is without contradiction, and conclusively establishes that the death of the deceased was caused in part by disease or bodily infirmity. The contention is without merit. Such testimony was not in the nature of fact testimony but necessarily embodied in each instance the opinion and conclusion of the witness. Thus when the witnesses stated that the hardening of the arteries and the presence of calcium deposits in the tissues was the result of arteriosclerosis they but stated their opinion. The undertaker, Keith Hotchkiss, for example, testified that these identical conditions are produced by the chemical action of embalming fluid. And when the doctors testified that the conditions found were produced by disease, and that the disease was present in such degree as to endanger the life of the deceased, they were in each instance but stating an opinion. And while, of course, the opinions of the trained pathologist and physician were entitled to due consideration, as being the conclusions of men trained in medical science, yet such opinions were not conclusive. Even when uncontradicted, the weighing of such testimony is peculiarly within the province of the jury. Jones on Evidence, Civil Cases (3d Ed.) § 390; Guinn v. Coates (Tex. Civ. App.) 67 S.W.(2d) 621; American Ins. Co. v. McKellar (Tex. Civ. App.) 295 S. W. 628. As...