North American Accident Ins. Co. v. Trenton

• Decision Date: 16 January 1907
• Parties: NORTH AMERICAN ACCIDENT INS. CO. v. TRENTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W. 740

NORTH AMERICAN ACCIDENT INS. CO. v. TRENTON.^*

Court of Civil Appeals of Texas.

January 16, 1907.

Rehearing Denied February 13, 1907.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by A. E. Trenton against the North American Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Onion & Henry, for appellant. Jas. Routledge and J. R. Norton, for appellee.

NEILL, J.

This is the second appeal in this case, the first being by the present appellee from a judgment rendered against him on a peremptorily instructed verdict. The opinion of this court reversing that judgment and remanding the cause to the district court for a trial on its merits is reported in 89 S. W. 276. As it states fully the nature of the case, it need not be restated. The judgment now appealed from is for $1,219, in favor of the appellee. It was recovered upon an accident insurance policy issued by appellant, insuring the appellee against bodily injuries caused solely by external, violent, and accidental means. There is no controversy about the facts that the injuries received were such as were insured against by the express terms of the policy, provided the same was valid, and that he was entitled to recover thereon the sum of $1,200 with interest, amounting in the aggregate to the sum adjudged in his favor. The policy sued on contains the following stipulation: "In consideration of the warranties, stipulations, and agreements contained in the application for this policy and in the schedule of warranties, both of which are made a material part hereof," etc. In the application for the insurance it was stated: "I have never had paralysis, fits of any kind, brain disorder, diabetes, hernia, varicose veins, or any bodily or mental infirmity, injuries, or wounds, or suffered the loss of a limb or an eye, except as herein stated." In the schedule of warranties it is stated: "I have never been ruptured or otherwise injured, or suffered the loss of a limb or an eye." The appellee testified that he had a foot "mashed a little" by a jack screw falling on it 12 or 13 years prior to the date of his application for the policy, but that he suffered no permanent injury from it, having entirely recovered from its effects within a few weeks afterwards. And that 22 or 23 years prior to the time he applied for the policy the index finger of his left hand got caught in a lathe and was rendered a little stiff and smaller than the corresponding finger on his other hand, in consequence. He also testified that when he was a little boy while playing ball he got another one of his fingers hurt, it having been crooked, with a "rainbow" in it. The case was submitted to the jury upon special issues, and one of them was the following: "Was the injury received by the plaintiff in 1892 or 1893, by having a jackscrew fall on his foot, or the injuries received by plaintiff to his fingers, or all of said injuries together, such injuries as increased the risk taken by defendant company in issuing said policy?"

The fifth assignment of error, which is the first insisted upon by appellant, complains of the submission of the question to the jury, upon the ground that appellee's statement in the application for the policy, which was made a part of it, that he had "never had any bodily injuries or wounds," was, by the express terms of the contract, a warranty, and it appearing from his own testimony that he had received injuries to his foot and finger, there was a breach of such warranty which rendered the policy void, and it was immaterial whether such injuries increased the risk taken by appellant in issuing the policy or not. In our opinion delivered on the prior appeal we held that the words "`injuries or wounds' were sufficiently broad and comprehensive to include every injury or wound, however trifling, such as the pricking of a hand by a pin, the slightest cutting of a finger, or any bruise or contusion produced by coming in contact with a hard substance. If literally and strictly construed, it would make it impossible for any man to obtain accident insurance, because no man, no matter how tenderly reared or well cared for, but that at some time in life has been injured or wounded. If during childhood a boy stubbed his toe or mashed his finger or bruised his head, he would, under the literal terms of the policy, be incapacitated to obtain insurance against accidents. To place that construction upon the policy would be to hold that accident insurance companies do not desire to insure; for not one man in 10,000, if any at all, could truthfully say that he had never received the slightest wound or injury. We must conclude that the insurance company was seeking to insure, rather than to make it impossible for any man to insure, and that a reasonable construction must be placed upon the words `injuries or wounds,' or the words `otherwise injured.' The only reasonable construction that can be placed upon the words is that the applicant had not received any such serious wound or injury as might affect the risk taken by the company in insuring the applicant against accidents." See, also, Ins. Ass'n v. Bozeman, 21 Tex. Civ. App. 490, 52 S. W. 94...