Order of Railway Conductors of America v. Gregory

• Decision Date: 14 February 1936
• Docket Number: No. 1517.,1517.
• Citation: 91 S.W.2d 1139
• Parties: ORDER OF RAILWAY CONDUCTORS OF AMERICA v. GREGORY.
• Court: Texas Court of Appeals

91 S.W.2d 1139

ORDER OF RAILWAY CONDUCTORS OF AMERICA v. GREGORY.

No. 1517.

Court of Civil Appeals of Texas. Eastland.

February 14, 1936.

Rehearing Denied March 13, 1936.

Appeal from District Court, Nueces County; Birge Holt, Judge.

Action by Annie Laura Gregory against the Order of Railway Conductors of America. From an adverse judgment, the defendant appeals.

Affirmed.

E. H. Crenshaw, Jr., of Kingsville, and John C. North, of Corpus Christi, for appellant.

Jones & Kirkham, of Corpus Christi, for appellee.

GRISSOM, Justice.

Appellee sued appellant upon an accident insurance policy issued to her deceased husband, which provided for payment to her, as beneficiary, of $2,500 in the event of accidental death of the insured under certain circumstances. The trial resulted in a judgment for appellee for $2,800, which was the face value of the policy, plus $300 attorney's fees.

The jury found (1) that about February 5, 1934, the insured sustained an injury by means of a fall from a locomotive; (2) that such injury left visible marks upon the body; (3) that the death of the insured was the result of said injury independently of all other causes; and (4) that $300 was a reasonable fee for appellee's attorneys.

Appellant, in its brief, presents the following propositions:

(1) "The court erred in rendering judgment for the plaintiff and in not rendering judgment for the defendant for the reason that it conclusively appeared that the death of plaintiff's husband was caused by infection, and this was not introduced into the body of said husband by or through an open wound which open wound was caused by external, violent and accidental means and which was visible to the naked eye."

(2) "The court erred in rendering judgment for the plaintiff and in not rendering judgment for the defendant for the reason that it conclusively appeared that the death of plaintiff's husband was caused either partially or entirely by disease, which was an exception to the coverage of the insurance policy issued by defendant."

Article 20 of appellant's by-laws provided: (a) "The department shall not be liable in case of injury, fatal or otherwise, resulting from any poison or infection unless the infection is introduced into or by and through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the naked eye. * * *"

Under the first proposition and exemption (a) appellant says that the medical testimony of appellee was that insured's death "was caused by peritonitis; that this was due to the fact that when Gregory fell the force of his body caused a squeezing and bruising of the intestines and the organs of the abdomen; that this caused a rupture of the capillaries or smallest blood vessels and caused several hemorrhages, and as a result of this, peritonitis developed." It quotes appellee's witness Dr. Thayer as saying in effect that in his opinion the sole and only cause of death was "the blow which was received on the side of the abdomen or stomach."

Appellant further says: "All of plaintiff's testimony was to the effect that the injury and pain suffered by Gregory were due to the blow and the bruising caused thereby. None of the testimony showed there was any open wound through which the infection was or could be introduced."

Appellant then argues that under the foregoing quoted exception from liability (a) appellant is not liable where death was caused by infection, which infection was not introduced into the body by or through an open wound. The quoted provision plainly provides that appellant shall not be liable in case of fatal injury resulting from infection, unless the infection is introduced through an open wound, etc. In making this contention, appellant must necessarily assume that the established cause of the death was infection as that word is used in the by-laws and as applicable to the facts of the case.

Under the second proposition appellant sets out the following provisions of its bylaws:

(b) "This department shall not be liable in case of injuries fatal or otherwise, inflicted by a member, in good standing, on himself, while sane or insane, or injuries of which there are no visible marks upon the body. (The body itself not being deemed such a mark in case of death,) or in case of injury, happening to a member while in any degree under the influence of intoxicating liquor or narcotics; or by reason of and in consequence of the use thereof, or for death, loss of either hand, arm, foot, leg, sight of either eye, or disability when caused wholly or in part by disease, fighting, duelling, wrestling, or in acting as an aviator or balloonist."

(c) "Whenever a member in good standing shall, through external, violent and accidental means, receive bodily injuries which shall, independently of all other causes, result within six months from the date of said accident, in the death of the member, the beneficiary named in the certificate shall be paid as follows:" etc.

Under this proposition and exemption from liability (b) it is contended that the evidence shows conclusively that insured's death was "caused wholly or in part by disease," and that therefore the exception above quoted is applicable and appellant is not liable under its policy and by-laws.

Much dispute is found in the testimony; however, we deem the evidence sufficient to authorize the conclusion that about 19 days before insured's death he fell from a locomotive engine onto the cross-ties and suffered an injury to his stomach which caused his death. There was ample evidence that at the time of his injury he was a strong, healthy man. With reference to the cause of the insured's death, Dr. Thayer testified that "the sole and moving cause of death under such circumstances would be the blow received on the side of the abdomen or stomach which was sufficient to bruise the tissues and scratch or scrape or abrase the skin; that these things would be enough for the following steps which resulted in death; that a blow of this nature would cause peritonitis, providing the blow was severe enough to hurt any of the organs inside, such as the intestine * * * that based on the hypothetical question he could think of no other possible cause of death."

Was it intended for the "infection" clause to apply to external violence that produced internal injuries and which resulted in internal infection? Does it apply to a case where bacteria is caused to operate internally by reason of a violent external injury leaving its mark upon the exterior of the body? What was the cause of Gregory's death? Was it the fall, or was it infection or disease? The quoted provision (c) of the by-laws provides for compensation for external accidental injuries which, independently of all other causes, result within six months in death. It is difficult to imagine a death six months after such an injury in which infection or disease had not set up as a result of the injury and finally produced death. We do not believe with this provision in the policy that it was intended to provide for compensation only for death resulting immediately from a violent external injury (before disease or infection had time to develop), nor that it was meant to exclude death resulting within the period from disease or infection produced solely by such injury.

Under like situations the courts have adopted the ordinary meaning of words and terms as they are commonly understood by the average laymen in preference to a technical meaning as understood by members of a profession or by a lexicographer. In the very interesting case of International Travelers' Ass'n v. Francis, 119 Tex. 1, 23 S.W.(2d) 282, 286, Chief Justice Cureton, in considering whether the death of Francis, which was occasioned by the extraction of a tooth resulting in an infection producing Ludwig's angina, was an accidental death, quoted the following with approval:

"But our point of view in fixing the meaning of this contract must not be that of the scientist. It must be that of the average man."

"The words employed in a contract of insurance are to be taken and understood in their plain, ordinary, usual and popular sense, rather than according to the meaning given them by lexicographers, or persons skilled in the niceties of language. * * *" 32 C.J. pp. 1150, 1151, § 261.

"The rule is practically universal that, when the language of an accident policy is susceptible of different constructions, that one must be adopted which is most beneficial to the insured." Continental Cas. Co. v. Colvin, 77 Kan. 561, 95 P. 565, 568.

Appellee contends, correctly we think, that the "ordinary conception of the word `infection' to a layman implies the invasion of bacteria from the air into an opening or abrasion on the surface of the skin or body causing toxic or blood poisoning." We find that the courts have adopted this ordinary meaning or understanding of the word.

"Whatever medical understanding of the word `infection' may be, laymen's understanding of word is that it is caused by any noxious substance inserted into the flesh, whether substance be germ or poison. Dickey v. Western Tablet Co., 218 Mo.App. 253, 267 S.W. 431, 433." 4 Words and Phrases, Third Series, p. 266.

In the case of Continental Cas. Co. v. Colvin, supra, the policy provided: "Where the loss is occasioned or contributed to in any way by * * * infection; then * * * the amount payable shall be one-fourth of the amount which otherwise would be payable under this policy." There the insured fell, bruising his chest. A few days later he became sick, an operation was performed, and pus was found in the chest. Soon afterwards he died. The jury found, in substance, that the fall was the cause of his death, that infection did not occasion or contribute to his death. The court said: "The jury evidently believed that the word `infection' as used in the policy was not intended to apply to the condition of the insured. The evidence of Dr....