Police & Firemen's Ins. Ass'n v. Kemper

• Decision Date: 14 May 1930
• Docket Number: No. 8436.,8436.
• Citation: 28 S.W.2d 1111
• Parties: POLICE & FIREMEN'S INS. ASS'N v. KEMPER.
• Court: Texas Court of Appeals

28 S.W.2d 1111

POLICE & FIREMEN'S INS. ASS'N v. KEMPER.

No. 8436.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1930.

Rehearing Denied June 11, 1930.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by Thekla Kemper against the Police & Firemen's Insurance Association. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Boyle, Wheeler, Gresham & Terrell, of San Antonio, for appellant.

Charles T. Haltom, of San Antonio, for appellee.

FLY, C. J.

Appellee sued appellant to recover $2,000 alleged to be due as insurance on the life of her husband, who died on February 20, 1928, his death resulting from an injury received in an accident which occurred on January 31, 1928, or early on February 1, 1928. It was alleged that William H. Kemper had paid all premiums due on the policy and had fully complied with the conditions and provisions of the policy. Appellant alleged a failure of deceased to comply with the provisions of the policy and that his death did not come within the terms of the policy. The cause was submitted on special issues, and on the several answers judgment was rendered in favor of appellee for the amount claimed.

The facts show that William M. Kemper, deceased, husband of appellee, was at the time of his death a member in good standing of the appellant association, and had been insured against accidents therein; said company agreeing to pay Thekla Kemper, within ninety days after the receipt of satisfactory proof of the happening of accidental death, the sum of $2,000.

The jury found that deceased received the injuries while fighting a fire, and that such injuries caused his death, independently of all other causes. They also found that the injuries resulted in his "total disability" and that the injuries were "immediate" as required by the terms of the policy, and that the injuries were "continuous" from the time of the injury to the time of the death of appellee's husband. These findings as to the injuries are assailed by appellant as contrary to and unsupported by the facts.

The contract as evidenced by the policy was that the beneficiary would be paid $2,000 in case the member "through external, violent and accidental means" should receive "bodily injuries which independently of all other causes," result in death, within ninety days from and after the date of such accident. If the member should not die as a result of an accident then the beneficiary was to be paid only $200 at his death. Deceased was injured on the night of January 31, 1928, through the inhalation of smoke and fumes while fighting a fire, in the capacity of captain of the fire department of the city of San Antonio, the fire having occurred in the prescription room of a drug store at the corner of Romana street and Main avenue. The firemen were extinguishing the fire with chemicals in a very small room. It took about an hour to extinguish the fire. Deceased had no respirator to put over his nose and mouth to prevent inhaling the fumes. The latter caused Kemper to vomit at different times during the fight on the fire. He complained for several days of his chest being sore. Assistant Fire Chief Melcher testified: "With reference to any certain complaint that he made after the fire, I will state that he complained of feeling bad and saying that it hurt in his chest and throat, that was all, and he wasn't lively any more after that time." While the fire was in progress acids and different kinds of medicines were exploding. Kemper complained of his chest every day until he went to the hospital. From the time of the fire he was hoarse, "whisper-like." He grew worse and died in the hospital. Deceased had up to the time been a healthy, vigorous man who was off duty only once in twelve years, and that was when his father died. Appellee swore that he was very hoarse after the fire and on February 13, less than two weeks after the fire, he was sent to the hospital. Deceased after the fire grew worse and was not the same man. Several witnesses swore to these facts. In answer to a hypothetical question, stating all the facts in connection with the fumes inhaled by deceased, the symptoms afterwards, the development of...