Mutual Ben. Health & Acc. Ass'n v. Hudman, 11245

Decision Date16 December 1964
Docket NumberNo. 11245,11245
Citation385 S.W.2d 509
CourtTexas Court of Appeals

R. F. Proud, Omaha, Neb., Brundidge, Fountain, Elliott & Churchill, Bobby D. Dyess, Dallas, for appellant.

Hardeman, Smith & Foy, San Angelo, for appellee.

HUGHES, Justice.

Paul B. Hudman died April 28, 1963, while driving his 1960 pickup truck near San Angelo, Texas. This suit is by his widow, Mary Louise Hudman, against Mutual Benefit Health and Accident Association to recover, as named beneficiary, on an insurance policy issued by the Association to Mr. Hudman which provided, in part:

'The applicable benefit amount * * * will be paid to the beneficiary named * * * if covered injuries result in your death independently of other causes * * * 'Covered injuries' means accidental bodily injuries which you recive while you are driving or riding in any private passenger automobile * * *'

Trial was to the court without the aid of a jury. Judgment was rendered for appellee in the principal policy sum of $2000.00, with 6% interest from July 27, 1963, (the policy provides for payment within 90 days from the date of insured's death) $240.00 statutory penalty, $500.00 attorney's fees, and contingent attorney's fees of $250.00 if appealed to the Court of Civil Appeals and $250.00 if carried to the Supreme Court.

Upon appellant's request the Trial Judge prepared and filed findings of fact and conclusions of law which we copy:


'1. The pickup truck owned by Paul B. Hudman was used by him and his family as a private passenger automobile. It was being so used at the time of his death.

'2. Prior to his death on April 28, 1963, Paul B. Hudman was in apparently good health. He had never had a diagnosis of or treatment for heart trouble of any kind. He had never complained to his wife or friends of chest pain, shortness of breath or other heart symptoms.

'3. Paul B. Hudman died of ventricular fibrillation, which proximately resulted from his unusual and excessive exertions on an abnormally hot day, on which there was an extreme fluctuation in humidity. This was an accidental bodily injury and it occurred while he was riding in his pickup truck. The exertion of driving the pickup truck on the ranch road immediately prior to his death was a contributing cause of the fibrillation.

'4. The arteriosclerosis of Hudman's coronary artery was a predisposing condition and not a proximate cause of his death. Of itself, it would not have caused his death.

'5. A reasonable attorney's fee for services rendered in the preparation and trial of plaintiff's case through the trial court is $500.00, with an additional $250.00 if the case is appealed to the Court of Civil Appeals and $250.00 additional to that if an application is made to the Supreme Court for writ of error.


'1. Within the meaning of the policy, the vehicle which insured was driving on the occasion in question is a private passenger automobile.

'2. The combination of excessive and unusual exertion, abnormally hot weather and extreme fluctuation in humidity is a sufficient external trauma to constitute the resulting ventricular fibrillation an accidental bodily injury, within the meaning of the policy.

'3. Plaintiff is entitled to judgment for the proceeds of the policy, $2,000.00, plus interest thereon at the rate of six (6%) percent per annum from July 27, 1963, (ninety (90) days after the death of the insured), together with $240.00 statutory penalty and attorney's fees of $500.00 through the trial court, an additional $250.00 if appeal is made to the Court of Civil Appeals and $250.00 additional to that if application is made to the Supreme Court for writ of error, said attorney's fees to be taxed as cost herein.'

There is no controversy regarding the facts and circumstances pertaining to the death of Mr. Hudman. We will briefly recite them.

Mr. Hudman died at the age of 54 years. He was a pharmacist, customarily working in an air conditioned building. He owned some farms near San Angelo on which, on Sundays, he frequently engaged in physical labor. On the Sunday he died, Mr. Hudman went to one of his farms early in the morning and he returned for his fifteen year old son, Gary, about 9:30 a. m. Mr. Hudman was driving his Chevrolet Fleetside one-half ton pickup, manufactured in 1960. It was two wheel drive, equipped with heavy duty coil springs and it had three forward and one reverse gears. It was licensed in Texas as a 'farm truck.' Attached to this pickup was a trailer, a stock trailer about 14' long, 4' wide, a flat bed without sides, but with wooden uprights in iron holders to contain the hay and feed being carried.

Shortly after leaving home, the trailer had a flat which Mr. Hudman repaired with some difficulty.

Mr. Hudman and his son Gary worked throughout the day until about five p. m., with a short time out for a light lunch. The work consisted of loading and unloading the trailer and truck. Mr. Hudman had sold one of his farms and he was engaged in removing articles from the sold place to his other farms in the vicinity. The articles loaded and unloaded were assorted junk, posts, a sheep trough, wire and concrete blocks. There were about fifty of these blocks weighing 20 3/4 lbs. each. Some of the posts weighed 50 lbs. each. The sheep trough weighed about 200 lbs.

Mr. Hudman did all the driving. When the loaded trailer was attached he had to drive slowly to prevent whipping. The trailer was detached when the journey home commenced.

About 5 p. m., when enroute home, Mr. Hudman decided to go by the Herring place and look at a mare he had there for breeding. As he and his son approached the Herring place, Gary noticed his father's hands fall from the steering wheel and he slumped against the seat. Gary took the wheel and guided it to a stop in front of the Herring house. Artificial respiration was applied to no avail. An ambulance was summoned. Mr. Hudman was carried to a San Angelo hospital where he was pronounced dead upon arrival.

It was stipulated that prior to the day of his death Mr. Hudman 'had never complained of pain in his chest to his wife, partner or friends; from all external appearances he was in good health; no doctor had ever diagnosed heart trouble or disease or treated him for heart trouble or disease.'

The evidence showed that the maximum temperature on the day Mr. Hudman died was 89~, reached at 4-5 p. m., which temperature was 5~ above the Weather Bureau's fifteen year average for that date and which was 5~ higher than the maximum temperature for any day in the preceding week. The humidity on this day was 90% at 8 a. m. and 6% at 6 p. m.

An autopsy was performed by Dr. Lloyd R. Hershberger, M.D. on the body of Mr. Hudman, Dr. Philip O'B. Thompson, M.D. participating, and it showed that Mr. Hudman had heart disease of the arteriosclerotic type, the testimony being that arteriosclerotic heart disease is a thickening of the coronary arteries that supply the nutrition and oxygen to the heart muscles. The disease manifests itself by a narrowing of the diameter of the coronary arteries so that the total amount of blood flow to the diseased heart is decreased.

When asked to describe the main vessels that were diseased in Mr. Hudman's case, Dr. Hershberger testified as follows:

'The one particularly mentioned in my report relates to the anterior descending branch of the left coronary where there were two different areas of narrowing that were quite significant, but in addition to this there was a general thickening of the coronary circulation that involved both right main coronary and the left main coronary; so I had in my description at least three vessels that showed damage.'

About two centimeters below the origin of the left descending coronary Dr. Hershberger found a marked narrowing of the vessel; he stated that the diameter of this vessel was about 1/8th of what would be found in a normal coronary artery. Further down the same artery at about four centimeters from its origin, Dr. Hershberger described a second area of narrowing which he also estimated had reduced the interior space to about 1/8th of the normal size. The diseased artery supplied the blood to the muscles of the heart, particularly to the left ventricle. Because of the narrowing of the artery, Dr. Hershberger stated that the blood supply to that portion of the heart would be reduced to about 1/8th of the adequate supply.

The arteriosclerotic heart disease in Mr. Hudman's case, according to Dr. Hershberger, was substantially more advanced than would normally be found in a fifty-four year old male and Mr. Hudman had been afflicted with the disease for at least five years and possibly longer.

Dr. Hershberger also found an old area of scarring of the myocardium or heart muscle. The scarring was caused by arteriosclerosis, and a small blood vessel of the heart had become occluded so as to block off the blood supply to that particular area of the heart. The scarring had taken place at least six months previous to death.

Dr. Philip O'B. Montgomery, M.D., a witness for appellee, in response to an extremely long hypothetical question embracing most of the relevant facts as to which there was evidence and inquiring as to the cause of death of Mr. Hudman answered as follows:

'A. In my opinion, his death was caused by ventricular fibrillation, and the cause of the ventricular fibrillation was the unusual amount of work that he did under the emotional pressure that he did it, on a day when the temperature was unseasonably hot, and the humidity showed an extraordinary variation.

'These factors, coupled with his coronary arteriosclerotic disease, caused his heart to fibrillate, and this was the immediate cause of his death.

'Q. What is meant by ventricular fibrillation?

'A. Ventricular fibrillation is a very...

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13 cases
  • Mutual Ben. Health and Acc. Ass'n v. Hudman
    • United States
    • Texas Supreme Court
    • 31 Diciembre 1965
    ...and a pre-existing disease. She obtained a judgment in a case tried before the court without a jury and the intermediate court affirmed. 385 S.W.2d 509. We reverse those judgments and render judgment that the beneficiary take Paul Hudman, a fifty-four year old pharmacist, was the insured un......
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