Pan American Life Ins. Co. v. Youngblood, 1129

Decision Date27 July 1978
Docket NumberNo. 1129,1129
Citation569 S.W.2d 951
PartiesPAN AMERICAN LIFE INSURANCE COMPANY et al., Appellants, v. Mrs. E. R. YOUNGBLOOD et al., Appellees.
CourtTexas Court of Appeals

A. D. Dyess, Jr., Jesse R. Pierce, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.

Dan Matthews, Fulbright & Jaworski, Houston, for appellees.

MOORE, Justice.

This is a suit by the beneficiaries to recover accidental death benefits under two insurance policies. Mrs. E. R. Youngblood, Mrs. H. M. Lindsey, Estey R. Youngblood, Lindsey S. Youngblood, Mrs. Joan Smith, and Newton C. Youngblood, plaintiffs, instituted suit against defendants, Pan American Life Insurance Company and Banker's Life & Casualty Company, to recover benefits under the accidental death coverage provisions under the respective policies issued by defendants on the life of Benjamin Lindsey. 1 The defendants denied that the deceased died as a result of accidental bodily injury and alleged that the deceased died from natural causes brought about by arteriosclerotic cardiovascular disease. Trial was to a jury, after which the jury found that the death of deceased was caused by accidental bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury. Judgment was rendered against Pan American Life Insurance Company in the face amount of the policy for the sum of $10,000.00, together with the statutory penalty and attorney's fees. Judgment was rendered against Banker's Life & Casualty Company in the face amount of the policy for the sum of $100,000.00, together with the statutory penalty and attorney's fees. Both defendants have appealed.

We affirm.

It was stipulated that the group policy issued by Pan American Life Insurance Company provided for payment in the event death was "the direct result of bodily injury through accidental means independently of all other causes, as evidenced by a visible contusion or wound on the exterior of the body," and that the group policy issued by Banker's Life & Casualty Company provided for payment in the event death was caused by "bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury." The question of liability on both policies was submitted to the jury by Special Issue No. 1 which reads as follows: "Do you find from a preponderance of the evidence that the death of Benjamin Lindsey was caused by accidental bodily injury directly and independently of all other causes and effected solely through an accidental bodily injury?" The jury answered: "We do."

The basic facts out of which the case arises are not in dispute. On December 8, 1972, the body of Benjamin Lindsey, age 69, was found by a friend, Mrs. Florine Brown, a waitress at a Houston restaurant known as the Hickory Stick. She testified Mr. Lindsey came by the restaurant often; she had known him for 4 or 5 years and they were friends. The evidence shows that on December 8, 1972, Mr. Lindsey, who was a chemical engineer by profession, failed to report for work and his secretary called Mrs. Brown to see if she knew of his whereabouts. After the secretary had called a second time, Mrs. Brown testified that she drove to Mr. Lindsey's home. Receiving no answer to her knock at the door, she went around to the patio door. Looking through the patio door, she saw Mr. Lindsey, clad only in his underwear, lying on the floor with his head near the track of the sliding glass door in a pool of blood. She then went next door and contacted Mrs. Hopper, a neighbor, who had a key to Mr. Lindsey's house. Both entered the house and subsequently Mrs. Hopper went across the street and contacted Mrs. Giessel, a registered nurse. Mrs. Giessel testified that when she entered the house everything seemed to be in order. She testified she checked the deceased for pulse and breathing and, finding none, concluded that he was dead. Mrs. Giessel testified that Mr. Lindsey was lying on his stomach perpendicular to the patio door with his head against the back frame of the patio door. She testified that she saw a 2 to 2 1/2-inch laceration above his left eye. She estimated the blood around his head on the floor to have been between a cup and a cup-and-a-half.

While Mrs. Brown, Mrs. Hopper and Mrs. Giessel were at the Lindsey home, they were joined by Mrs. Hopper's husband, Dr. John J. Hopper, who was a medical doctor employed by the Veteran's Administration Hospital. He had been Mr. Lindsey's neighbor for nine years and had known him as a neighbor and a friend. Dr. Hopper testified that the deceased was lying on his left side with his head close to the patio door. Observing that Mr. Lindsey was apparently dead, Dr. Hopper testified he touched him on the neck and found him cold, pulseless and stiff, and concluded that he had been dead for several hours. He made no examination of the body. He testified that his initial impression was that Mr. Lindsey had stumbled, hit his head and fractured his skull, but admitted that this was only an assumption. He stated that Mr. Lindsey could have died of natural causes as a result of a stroke or a heart attack and then fallen, and that the only way to determine the cause of death was by a complete examination. He stated that a post-mortem examination would be required to erase his initial assumption about cause of death. While he had not seen Mr. Lindsey as an attending physician, he testified that he had known him as a friend and knew that Mr. Lindsey was a heavy drinker, a fact which was also confirmed by his niece, Mrs. Joan Smith and Mrs. Brown. Mrs. Smith testified that Mr. Lindsey used alcohol nearly every day during the last few years of his life.

On the night before his death, Mr. Lindsey had visited the Hickory Stick restaurant with his secretary and her husband. According to Mrs. Brown, the waitress, Mr. Lindsey had two drinks that night and did not eat his dinner. She testified that she wrapped his dinner for him to take home and she found it on the sink the next day when she entered his house.

Dr. Joseph Jachimczyk, Chief Medical Examiner of Harris County, Texas, was called as a witness by the defendants. Dr. Jachimczyk did not view or examine Mr. Lindsey's body, but in his capacity as Chief Medical Examiner he reviewed the photographs of the body taken by the police at the Lindsey home and the post-mortem examination report which was prepared by his assistant, Dr. Sheldon Green. He testified that, based on the report prepared by Dr. Green, he was of the opinion that Mr. Lindsey's death was caused by arteriosclerotic cardiovascular heart disease, resulting in a heart attack. The post-mortem report relied on by Dr. Jachimczyk reads in part as follows:

"Case 72-4694, December 9, 1972, postmortem examination on the body of Benjamin Slayden Lindsey, 4839 Rockwood, Houston, Texas. History: This 68-year-old white man was found dead on the floor of the den at his home at the above address at approximately 4:30 p. m. on December 8, 1972. He was a known heavy drinker. View: The view was performed by Assistant Medical Examiner G. Sheldon Green, M.D., assisted by Dr. Paul G. Stimson, at the request of Chief Medical Examiner Joseph A. Jachimczyk, M.D., J.D., beginning at 9:00 a. m. on December 9, 1972, in the Harris County Morgue. External appearance: The body was that of a well-developed, well-nourished white man, appearing the stated age of 68 years, measuring 71 inches in length and weighing 118 pounds. There was fixed rigor mortis in the extremities. The hair was gray-brown, receding at the crown, measuring up to three inches in length posteriorly. The eyes were grey. The pupils were round and equal. The sclerae were slightly injected. The nose was somewhat enlarged, but the nasal bones were intact. There was a slight blood tinged fluid exuding from the nose. * * * The superficial neck veins were prominent. * * * There was one to two-plus pretibial and ankle pitting edema. The fingernail beds were cyanotic. There was nicotine staining on the thumb, index and middle finger of the left hand. * * * The cerebrospinal fluid was clear. A Vim-Silverman needle biopsy of the liver was performed."

At the time of trial Dr. Green was Chief Medical Examiner in Las Vegas, Nevada and did not testify. Dr. Jachimczyk admitted that his opinion as to the cause of death was based solely on the facts set out in the post-mortem examination report prepared by Dr. Green. He explained that arteriosclerosis is a condition marked by hardening, thickening and loss of elasticity of the arteries, which occurs over a period of time. He testified that many of the findings set forth in the post-mortem report convinced him that the deceased suffered a heart attack, but admitted that his opinion was only as good as the post-mortem report on which his opinion was based. He further testified that an autopsy was the only absolute certain way to determine cause of death, but that no autopsy was performed because in his opinion it was not necessary in this instance.

He testified that the finding that the pupils of the eyes were round and equal was of significance to him in reaching his opinion, because if there had been an impact to the head and a subdural hematoma had formed, one would expect to find one pupil to be larger than the other; that it is not necessary for a person who dies of trauma to have a subdural hematoma, but that the absence of a hematoma goes to rule out that there was any traumatic injury to the head to cause subdural hemorrhage and death; and that death can result from a fall without a subdural hematoma if there are cerebral contusions and lacerations. He testified that the findings of prominent superficial neck veins, edema, cyanotic fingernail beds and the absence of blood in the cerebrospinal fluid were all consistent with his conclusion that the deceased suffered from arteriosclerotic...

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    ...accident that was an active, efficient, and precipitating cause of death." Id. 153 N.W.2d at 451. See also Pan American Life Ins. Co. v. Youngblood, 569 S.W.2d 951 (Tex.Civ.App.1978). In Egan v. Travelers Ins. Co., 224 Wis. 596, 273 N.W. 68 (1937), the Wisconsin Supreme Court held that the ......
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    ...was also admitted in evidence. Appellant's seventeenth point of error is overruled. Cf. Pan American Life Insurance Co. v. Youngblood, 569 S.W.2d 951, 958 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.) (presumed error in excluding cause of death from death certificate harmless due to other T......
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    ...any witness, including a physician, even though the witness's testimony is not contradicted); Pan Am. Life Ins. Co. v. Youngblood, 569 S.W.2d 951, 957 (Tex.Civ.App.-Tyler 1978, writ ref'd. n.r.e.). Furthermore, cause of death is not a subject in which the jury must be guided solely by the o......
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