North American Accident Ins. Co. v. Miller

• Decision Date: 07 March 1917
• Docket Number: (No. 1124.)
• Citation: 193 S.W. 750
• Parties: NORTH AMERICAN ACCIDENT INS. CO. v. MILLER.
• Court: Texas Court of Appeals

193 S.W. 750

NORTH AMERICAN ACCIDENT INS. CO. v. MILLER.

(No. 1124.)

Court of Civil Appeals of Texas. Amarillo.

March 7, 1917.

Rehearing Denied March 28, 1917.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallam County; D. B. Hill, Judge.

Action by Abbie L. Miller against the North American Accident Insurance Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Ben H. Stone, of Amarillo, and J. Y. Powell, of Houston, for appellant. W. A. Davidson, of Amarillo, and R. E. Stalcup, of Dalhart, for appellee.

HUFF, C. J.

Abbie L. Miller sued the North American Accident Insurance Company on an accident policy, issued by that company, insuring her husband against accident, etc., in the principal sum of $5,000, and weekly benefits for $25 per week, alleging substantially that William J. Miller, her husband, was accidently injured on or about the 10th day of October, 1911, and that he was immediately totally disabled, and which disability continued to the time of his death; that such injury was the direct, proximate, and sole cause, exclusive of all other causes, in total, immediate, and continuous disability which continued to his death, which occurred April 11, 1913, Mrs. Miller sought a recovery for the principal sum of $5,000, and weekly indemnity of $25 for 78 weeks, and reasonable attorney's fees. It is alleged the injury received by Miller resulted in aneurism of the aorta, which was incurable and resulted in the death of Miller, on the date above stated; that Mrs. Miller, his wife, was the beneficiary named in the policy; and that the injury was received during the term of the policy.

The defendant answered by general denial and exceptions, and further the settlement of the claim by payment to Mrs. Miller of $1,000, in full compromise, settlement, and discharge of all liability under the policy, specially denied that the injury resulted from the accident as alleged, and that Miller was actively engaged in his occupation as a deep well driller, superintending, the only capacity in which he was insured, and in plumbing work long after the injury; that the insured died of acute dilation of the heart and arterio sclerosis primarily caused by syphilis.

The court submitted special issues to the jury as follows:

Special issue No. 1: "Did the said W. J. Miller, on or about October 10, 1911, while engaged in superintending the work on the drilling of the well in Dallam county, sustain through accidental means a bodily injury in the manner alleged in plaintiff's petition? Answer, `Yes,' or `No.'" The jury answered: "Yes."

Special issue No. 2: "If you answer the foregoing special issue in the affirmative, then you will find whether or not such bodily injury so sustained resulted directly, independently, and exclusively of all other causes in immediate, continuous, and total disability that prevented him, the said William J. Miller, from performing any and every kind of duty pertaining to his occupation, continuing until the death of the said William J. Miller. Answer this special issue, `It did,' or `It did not.'" The jury answered: "It did."

Special issue No. 2a: "If you have answered special issue No. 1 in the affirmative, then you will find whether or not said accident, directly, independently, and exclusively of all other causes, produced an aneurism of the aorta of the said William J. Miller. Answer this special issue, `It did,' or, `It did not.'" The jury answered: "It did."

Special issue No. 3: "If you have answered special issues Nos. 1 and 2a each in the affirmative, then you will find whether or not the death of William J. Miller was caused directly, independently, and exclusively of all other causes by said aneurism of the aorta. Answer this special issue, `It was,' or, `It was not.'" The jury answered: "It was."

Special issue No. 4: "You will find whether or not the settlement, in which Mrs. Miller accepted the sum of $1,000 in satisfaction of her claim on the policy and executed the release introduced in evidence, was procured by fraud on the part of the defendant. Answer this special issue, `It was,' or, `It was not.'" The jury answered: "It was."

Special issue No. 5: "If your answer to the foregoing issue is in the affirmative, then you will find whether or not the plaintiff thereafter ratified such settlement. Your answer to this special issue will be, `She did,' or, `She did not.'" The jury answered: "Did not."

Special issue No. 6: "What amount, if any, do you find from a preponderance of the evidence would be a reasonable attorney's fee for the prosecution and collection of plaintiff's claim on the policy herein, in the event it should be determined by the court, under your previous findings, that she is entitled to recover? You will answer this special issue by stating the amount, if any, found by you." The jury answered: "$500.00."

On this verdict the court rendered judgment, after allowing credit of $1,000, the total sum of $8,323, being the principal sum insured, weekly benefits, interest thereon, and attorney's fees, after allowing the credit. The provisions of the policy material to the consideration of this case are as follows:

"The Insuring Clause.

"Does hereby insure William J. Miller (herein called the insured) well-boring contractor, not handling explosives, superintending only in Class C, in the principal sum of five thousand dollars (herein called the principal sum) and in the sum of twenty-five dollars a week (herein called the weekly indemnity) against (1) bodily injury sustained during the term of this policy, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) and resulting directly, independently and exclusively of all other causes, in

"(a) Immediate, continuous and total disability that prevents the insured from performing any and every kind of duty pertaining to his occupation. * * *

                  "(c) Death, as follows
                         "Accident Indemnities. * * *
                              "Death
                

"Article 3. If the insured suffers total disability, and if, during the period of said total disability, the insured suffers death as the direct result of the bodily injury, causing the said total disability; or, if within ninety days from the date of the accident, irrespective of total disability the insured suffers death; the company will pay the beneficiary.

"The Principal Sum.

"And, for the period between the date of the accident and the date of death, an additional sum of

"The Weekly Indemnity. * * *

"Article 15. In the event of the insured's death prior to the payment of any indemnity to which the insured may have become entitled under this policy, such indemnity shall be paid by the company to the beneficiary. * * *

"Article 16. Written notice of an accident on account of which a claim may be made hereunder must be given to the company at its home office in Chicago, Illinois, as soon as may be reasonably possible, together with full particulars thereof, and the full name and address of the insured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company in like manner. Affirmative proofs in writing must be filed with the company as follows:

"Section 1. Accident Claims. Affirmative proofs of death, dismemberment, loss of sight, total disability or partial disability, must be filed with the company within two months from the time of death or of dismemberment or of loss of sight or of the termination of the period of total disability or partial disability, for which claim is made. * * *

"Article 24. This policy is issued in consideration of the premium and of the statements which are set forth hereon in the schedule of warranties which are made a part hereof and which the insured makes and warrants to be true by the acceptance hereof, and policy is subject to the conditions and provisions herein contained and indorsed hereon. * * *

"Article 27. If the insured is injured fatally or otherwise in any occupation classed by the company as more hazardous than that stated at the foot of the schedule of warranties, the company's liability shall not exceed such proportion of the principal sum or other indemnity under this policy as the premium paid by him will purchase at the rates fixed by the company for such increased hazard."

Under the schedule of warranties are found the following:

"(g) Whose business is that of plumber, steam fitter and well contractor.

"(h) The duties of my occupation are fully described as follows: Well-boring contractor, not handling explosives, superintending only.

"This policy is dated the 15th day of June, 1911, and expires June 15, 1912, at noon, standard time at the place of the insured's address written above."

The insured's occupation is classed by the company as "C."

The facts warrant the finding: That William J. Miller received an injury while superintending the work in sinking a deep well about the 10th day of October, 1911. That a rope broke, and the machinery was released thereby, which caused the casing to which was attached a wrench to revolve around very rapidly. As the wrench came around, the end of the wrench struck Miller in the upper chest, which knocked him flat on his back, and that the blow was one of great force. This blow immediately rendered him unconscious. That he was picked up and placed in a conveyance and carried home. That the blow rendered the place on his chest struck black and bruised looking. Miller was placed in a bed the day he received the injury, but on the next morning was able to get out of bed, and again returned to the work; but in the afternoon was again brought home and took his bed, where he remained for something like two weeks, unable to leave the house. During these two weeks, at the point where this bruise was on his chest there developed what his wife termed a small "bunch" — perhaps an inch and half in diameter. That he complained of severe aching across the breast, and this place...