Pledger v. Business Men's Acc. Ass'n of Texas

• Decision Date: 13 June 1917
• Docket Number: (No. 5775.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 197 S.W. 889
• Parties: PLEDGER v. BUSINESS MEN'S ACC. ASS'N OF TEXAS.
• Court: Texas Court of Appeals

197 S.W. 889

PLEDGER v. BUSINESS MEN'S ACC. ASS'N OF TEXAS.

(No. 5775.)^*

Court of Civil Appeals of Texas. Austin.

June 13, 1917.

Appellee's Petition for Rehearing Granted and Judgment Affirmed, and Appellant's Petition for Rehearing Denied October 17, 1917.

Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.

Action by Minnie Pledger against the Business Men's Accident Association of Texas. Judgment for defendant, and plaintiff appeals. Reversed and remanded for another trial.

Lyndsay D. Hawkins and E. R. Pedigo, both of Austin, for appellant. White, Cartledge & Graves, of Austin, for appellee.

Findings of Fact.

JENKINS, J.

Appellee is a mutual assessment accident association incorporated under the provisions of chapter 5, title 71 of the Revised Statutes. Beauregard Pledger, the husband of appellant, held a certificate issued by appellee. He was a cotton buyer, and on the 7th of December, 1915, was engaged in his usual occupation, and was looking after his cotton in his cotton yard. At about noon on that day he was seen by Roy Davis to attempt to lift a cotton bale and he let it fall. Davis went to his assistance at his call, and was told by Pledger that he had lifted several bales, and it "got next to his wind." After remaining in the cotton yard a few minutes he told Davis that he felt like he ought to go home and lie down. He left and went to his office, and in a few minutes was seized by an attack in the region of the heart, which continued until about 5 o'clock that afternoon, when he died. The case was submitted to the jury upon special issues as follows:

"Q. No. 1. Did Beauregard Pledger on December 7, 1915, and shortly before his death, lift certain bales of cotton? Answer. Yes. Q. No. 2. If you have answered the preceding question in the affirmative, then answer this question— would the death of the said Beauregard Pledger have occurred at the time it did had he not lifted said bales of cotton? Answer. No. Q. No. 3. If you have answered the first question submitted to you in the affirmative, then answer this question—did the lifting of said cotton cause the said Beauregard Pledger to suffer a rupture of his heart or heart vessels? Answer. Yes. Q. No. 4. If you have answered the next preceding question in the affirmative, then answer this question—was the death of said Beauregard Pledger caused by a rupture, if any, to his heart or heart vessels? Answer. Yes. Q. No. 5. Did the said Beauregard Pledger before lifting said bales of cotton have a diseased condition of the heart or blood vessels of the heart? Answer. Yes. Q. No. 6. If you answer question No. 5 in the affirmative, then answer this question—did the diseased condition, if any, of the heart or blood vessels of the heart of said Beauregard Pledger assist in causing his death? Answer. Yes. Q. No. 7. If you find in answer to question No. 2 that the said Beauregard Pledger would not have died at the time he did had he not lifted said cotton, and if you have further found in response to question No. 5 that said Pledger before lifting said cotton had a diseased condition of the heart or blood vessels of the heart, then you will answer this question —would the death of the said Beauregard Pledger under such circumstances have been a usual or reasonably expected result of the physical effort involved in lifting said cotton? Answer. Yes."

The findings of the jury as above set out are sustained by the evidence, except as to No. 7, and their answer to that question is true in the sense that they doubtless meant it; that is to say, that, from all of the facts and circumstances shown by the evidence and known to them at the time they answered said question, the death of said Beauregard Pledger was reasonably to be expected from the result of his physical effort involved in lifting said cotton.

Opinion.

The controlling issue in this case is whether the deceased was insured against accidental death, or only against death by accidental means. The distinction is well recognized in numerous decisions and various jurisdictions, and may be briefly stated thus:

Where the death is the result of some act, but was not designed and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidental death. Where death is caused by some act of the deceased not designed by him, or not intentionally done by him, it is death by accidental means. In other words, accidental death is an unintended and undesigned result, arising from acts done; death by accidental means is where the result arises from acts unintentionally done.

Death by accident and death by accidental means is discussed and recognized in the following, among other, cases: Bryant v. Cas. Co. (Sup.) 182 S. W. 673, L. R. A. 1916E, 945; Ins. Co. v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 64; Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 50, 74 Am. St. Rep. 112; Feder v. Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212; Lehman v. Acc. Ass'n, 155 Iowa, 737, 133 N. W. 752, 42 L. R. A. (N. S.) 567; Shanberg v. Cas. Co., 158 Fed. 1, 85 C. C. A. 343, 19 L. R. A. (N. S.) 1206; Hood v. Cas. Co., 206 Mass: 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379; Hastings v. Trav. Ass'n (C. C.) 190 Fed. 260; Niskern v. United Bro., 93 App. Div. 364, 87 N. Y. Supp. 640; Horsfall v. Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846; Beile v. Trav. Ass'n, 155 Mo. App. 629, 135 S. W. 497; Clidero v. Scot. Acc. Ins. Co., 19 R. 355; 29 Scott, L. R. 303.

In the case last above cited the court said:

"A person may do certain acts, the result of which acts may produce unforeseen consequences and may produce what is commonly called accidental death; but the means are exactly what the man intended to use, and was prepared to use. The means are not accidental, but the result might be accidental."

Which is to say the death may be accidental, though not caused by accidental means.

Corpus Juris, vol. 1, p. 390, in defining "accident" says:

"In its most commonly accepted meaning the word denotes an event that takes place without one's foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore was not expected; * * * an event which under the circumstances is unusual and unexpected by the person to whom it happens."

A similar definition of accident is given in 14 R. C. L. 1238. The texts of these excellent treatises are amply supported by the numerous authorities cited in their notes.

On the other hand, the means by which a result is produced can never be said to be accidental, if the act done is just what the party intended to do.

These observations are made in view of the fact that appellant contends that the event insured against was accidental death while it is the contention of the appellee that it insured the deceased only against death from accidental means. The fact which appears to have been found by the jury in answer to the seventh question, namely, that knowing the diseased condition of the deceased's heart, as they did from the evidence, his death might reasonably have been expected from his exertion in lifting the cotton bales, is immaterial. The question is could he have reasonably anticipated such result from the facts known to him.

The deceased is shown by the evidence to have died from rupture of the heart caused by his lifting cotton bales. He was in apparent good health; he did not know anything was the matter with his heart. He was accustomed to lifting cotton bales and had not suffered any harmful results therefrom. He did not anticipate any injury from lifting the cotton bales at the time and in the manner that he did. Under the authorities above cited, which we think comport with a common sense view of the matter, his death was accidental.

On the other hand, if his act in lifting the cotton bale was just what he intended to do, and was done in the manner in which he intended, that is, if he did not slip, or unintentionally let the bale slip, or stumble or fall, and was thereby caused to exert himself beyond what he intended, his death was not caused by accidental means.

The difference between appellant and appellee as to whether or not appellee is liable on the policy sued on arises from the use of certain language in the by-laws, hereinafter set...