Perry v. Aetna Life Ins. Co. of Conn.

• Decision Date: 18 June 1964
• Docket Number: No. 48,48
• Parties: Mrs. Erma Gene PERRY, Guardian of Lonnie Perry, a Minor, Appellant, v. AETNA LIFE INSURANCE COMPANY OF CONNECTICUT, Appellee.
• Court: Texas Court of Appeals

Page 868

380 S.W.2d 868

Mrs. Erma Gene PERRY, Guardian of Lonnie Perry, a Minor, Appellant, v. AETNA LIFE INSURANCE COMPANY OF CONNECTICUT, Appellee.

No. 48.

Court of Civil Appeals of Texas, Tyler.

June 18, 1964.

Rehearing Denied July 16, 1964.

Herman W. Mead, Houston, for appellant.

Joe E. Coleman and Fouts, Moore, Williams & Caldwell, Houston, for appellee.

DUNAGAN, Chief Justice.

This suit was brought in the 129th District Court of Harris County, Texas, by Erma Gene Parry, guardian of Lonnie Perry, a minor, appellant against Aetna Life Insurance Company, appellee. This suit was predicated on an insurance policy being Group Accidental Death and Dismemberment Policy No. LL-60,615. Aetna Life Insurance Company had previously paid $7,500.00 to Erma Gene Perry as Guardian of Lonnie Perry under Group Life Policy No. 60,615. Group Life Policy No. 60,615 and Group Accidental Death and Dismemberment Policy No. LL-60,615 are separate contract, No. 60,615 providing for $7,500.00 benefits on death and No. LL-60,615 providing for $7,500.00 benefits on death by accidental means. The plaintiff set the case for trial on the non-jury docket for the week of September 30, 1963. On the Friday preceding the week of September 30, 1963, at the call of the docket, the case was set down for trial in order of its number in the customary way. The case was not reached for trial until October 3, 1963, during the week of September 30, 1963. The appellant contended and now contends that the death of Lonnie Perry resulted from accidental means and the appellee contended and now contends that the death of Lonnie Perry did not result from accidental means within the definition of the policy. The trial court gave judgment for the appellee and this appeal has been brought by the appellant. The appellant contends that the case was tried in the trial court as an agreed case under Rule 263 of the Texas Rules of Civil Procedure. The appellee disagrees with this and says that the case was tried as any other non-jury case with each party introducing evidence and resting its case. The parties entered into a written stipulation on October 2, 1963, as to certain undisputed facts, the first paragraph thereof reading as follows:

'Now come plaintiff, Erma Gene Perry, Guardian of Lonnie Perry, a minor, and also defendant, Aetna Life Insurance Company through their respective attorneys of record, and stipulate and agree that the following facts are true and correct and as to which undisputed facts no additional proof is necessary to establish, or is to be required in this cause upon a trial thereof. This stipulation may be used on any trial of this cause or any motion for summary judgment. It is stipulated and agreed by the parties hereto as follows:'

The paragraphs contained in the stipulation which are pertinent to a proper disposition of this cause are as follows:

'6. That Group Accidental Death and Dismemberment Policy No. LL-60,615 and Certificate No 10715, both issued by Aetna Life Insurance Company, do not contain any exclusion clause other than the following:

"Insurance under this policy shall not cover any loss caused directly or indirectly, wholly or partly, or contributed to substantially, by bodily or mental infirmity; or ptomaines; or bacterial infections (except pyogenic infections which shall occur through an accidental cut or would); or any other kind of disease; or medical or surgical treatment (except such as may result directly from surgical operations made necessary solely by injuries covered by this policy); or war, or any act of war; or suicide, sane or insane.'

'7. That Lonnie Perry did not die as the result of any of the following causes:

"by bodily or mental infirmity; or ptomaines; or bacterial infections (except pyogenic infections which shall occur through an accidental cut or wound); or any other kind or disease; or medical or surgical treatment (except such as may result directly from surgical operations made necessary solely by injuries covered by this policy); or war, or any act of war; or suicide, sane or insane.'

'8. That by the stipulation in paragraph 7 there shall be no inference, finding or conclusion that the death or Lonnie Perry resulted directly or independently of all other causes from bodily injuries sustained solely through accidental means.

'9. That Group Accidental Death and Dismemberment Policy No. LL-60,615, evidenced by Certificate No. 10715, provided benefits of Seven Thousand Five Hundred Dollars ($7,500.00), payable on the death of Lonnie Perry upon receipt of due proof by Aetna Life Insurance Company that such loss of life resulted directly, and independantly of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.

'10. That there can be no recovery in this cause by the plaintiff unless the death of Lonnie Perry resulted directly or independently of all other causes, from bodily injuries (including bodily injuries arising out of or in the course of employment) sustained solely through accidental means.

'11. That Lonnie Perry was shot and killed by Erma Gene Perry with a .32 caliber revolved pistol about 12:15 A.M. on October 2, 1960.

'12. That Lonnie Perry was shot by Erma Gene Perry in self-defense. Self-defense was the defense of Erma Gene Perry in the trial of the criminal case for the murder of Lonnie Perry, which resulted in a verdict by a jury of not guilty.

'13. That Lonnie Perry had purchased the .32 caliber revolver pistol for Erma Gene Perry to use for her protection some ten years prior to October 1, 1960, and Lonnie Perry knew that said pistol was in the house occupied by Erma Gene Perry at 2801 Stallings Drive.

'14. That Erma Gene Perry and Lonnie Perry had been separated for some three months prior to September 15, 1960, during which time they lived separately. Their separation had been occasioned by Lonnie Perry's relationship with other women and on occasions when caught by Erma Gene Perry with other women or when reprimanded for going out alone Lonnie Perry had inflicted beatings on Erma Gene Perry. Erma Gene Perry had filed a suit for divorce from Lonnie Perry nad said divorce suit was pending and no divorce had been granted on October 2, 1960, and no restraining orders were in effect.

'15. That Lonnie Perry had moved back into the house at 2801 Stallings Drive with Erma Gene Perry approximately two weeks prior to October 1, 1960.

'16. That on October 1, 1960, Lonnie Perry left home at approximately 7:30 A.M. in the car owned by the Schlumberger Well Surveying Corporation, for whom he worked as a chauffer. Erma Gene Perry followed him in her car and observed him in the company of another woman, at which time she confronted him and told him that due to his continued association with other women that she was no longer going to live with him and wanted him to return home and get his clothes and leave. Lonnie Perrie returned home at approximately 10:00 A.M. on October 1, 1960. He was told by Erma Gene Perry to pack his clothes and get out. He left and returned home about 6:30 P.M. on October 1, 1960. He was asked by Erma Gene Perry what time he was planning on leaving and he said that she needn't worry that he was going to get out. He packed his clothes and put them on the front porch and left. About 12:15 A.M. on October 2, 1960, Erma Gene Perry was awakened while she was in the house at 2801 Stallings Drive by a noise at the front door. She got out of bed, got the pistol out of the dresser drawer and went into the hall, where she could see the front door. Lonnie Perry was in the process of breaking in the screen door and wooden door at the front of the house. Erma Gene Perry told Lonnie Perry not to come in the house, that all of his clothes were on the front porch. Lonnie Perry continued to break the screen door and wooden door open. The lights were on on the outside porch where Lonnie Perry was breaking the doors open, and in the living room where Erma Gene Perry was standing with the pistol in her hand in front of her in plain view. Erma Gene Perry could plainly see Lonnie Perry as he broke the door open. There was nothing that prevented Lonnie Perry from plainly observing Erma Gene Perry. He broke the screen door open and then battered the wooden door open with his shoulder breaking the lock on the wooden door, as well as a safety chain. Erma Gene Perry said 'Don't come in here. I will shoot.' Lonnie Perry continued to break the door open and upon getting inside started toward Erma Gene Perry. Erma Gene Perry fired the pistol at Lonnie Perry for the purpose as she stated of 'hoping to scare him so that he would stop and leave.' The first shot did not hit Lonnie Perry. Lonnie Perry continued to come toward Erma Gene Perry after the first shot and while still advancing stated 'I broke your arm once and I am going to break your neck this time.' Erma Gene Perry then fired the .32 caliber revolver at Lonnie Perry again. The second shot hit Lonnie Perry in the forehead approximately one and one-half inches above his right eye and resulted in his death. Erma Gene Perry had never threatened Lonnie Perry with a pistol or fired a pistol at him prior to the time of the shooting resulting in his death. Aetna Life Insurance Company has previously paid Seven Thousand Five Hundred Dollars (7,500.00) to Erma Gene Perry as guardian for Lonnie Perry, Jr., under Group Life Policy No. 60,615. Group Life Policy No. 60615 and Group Accidental Death and Dismemberment Policy No. LL-60615 are separate contracts, No. 60615 providing Seven Thousand Five Hundred Dollars (7,500.00) benefits on death by accidental means.

* * *

* * *

'18. That Aetna Life Insurance Company did not pay benefits under Group Accidental Death and Dismemberment Policy No. LL-60615 upon the death of Lonnie Perry, to Lonnie Perry, Jr., a minor, through his guardian within thirty days after demand.

* * *

...