Pyramid Life Ins. Co. v. Alexander, 7217

Decision Date09 August 1960
Docket NumberNo. 7217,7217
Citation337 S.W.2d 813
PartiesPYRAMID LIFE INSURANCE COMPANY, Appellant, v. Mrs. Mae ALEXANDER et al., Appellees.
CourtTexas Court of Appeals

Ramey, Brelsford, Hull & Flock, Donald Carroll, Tyler, for appellant.

Baldwin & Baldwin, Phillip B. Baldwin, Marshall, for appellees.

FANNING, Justice.

Appellees sued appellant insurance company to recover for death benefits (due to the death of E. R. Alexander) provided under certain policies of insurance, for attorney fees and for 12% statutory penalty. Under the policies in question the death benefits were payable when the death resulted 'directly and independently of all other causes from accidental bodily injury'. Trial was to a jury upon special issues.

In response to the special issues submitted the jury found that E. R. Alexander sustained an accidental injury on or about October 25, 1957, in Harrison County, Texas (Issue No. 1); that $1,000 would be a reasonable attorney fee (Issue No. 3); that E. R. Alexander had chronic nephritis prior to October 25, 1957 (Issue No. 4), but that same did not contribute to his death on November 3, 1957 (Issue No. 5); that the injuries sustained by E. R. Alexander when a horse fell on him did not contribute to his death on Nov. 3, 1957 (Issue No. 6); that E. R. Alexander had a heart impairment prior to Oct. 25, 1957 (Issue No. 7), but that same did not contribute to his death on Nov. 3, 1957 (Issue No. 8). Special Issue No. 2, the instruction and definition accompanying said issue, and the jury's answer to said issue are quoted as follows:

'Special Issue No. Two:

'Do you find from a preponderance of the evidence, if any, that E. R. Alexander's death resulted directly and independently of all other causes from such accidental injury, if any you have so found?

'Answer 'yes' or 'no'.

'Answer: 'yes.'

'In connection with the foregoing Special Issue, you are instructed that death resulting from accidental bodily injury directly and independently of all other causes occurs when death is the reasonable and natural consequence of such accidental bodily injury, as the term has been defined, and but for which, such death would not have occurred. Such death can occur from accidental bodily injury directly and independently of all other causes even though disease may have been present as a secondary cause thereof.'

The trial court rendered judgment for plaintiffs-appellees on the verdict of the jury in the amount of $4,549 with interest and costs. Appellant insurance company has appealed.

Appellant presents numerous points on appeal. Points 7, 8, 9, 10, 11, 12 and 13 are grouped by appellant as its first group of points. These points assail the overruling of defendant's numerous objections to the submission of Special Issue No. 2 and the explanatory instruction and definition accompanying Issue No. 2. In this connection appellant contends, among other things, that Special Issue No. 2 was not an ultimate issue, was evidentiary only, that the explanatory instruction and definition given in connection with Special Issue No. 2 constituted a general charge, were incorrect, confusing and misleading, contradictory of the policies in question, and placed a more onerous burden on the defendant as required by the policies in question.

We think appellant's points 7 through 13 inclusive do not present reversible error under this record. See McVeigh v. International Travelers Assurance Company, Tex.Civ.App., 101 S.W.2d 644, 645, err.Dism., where a somewhat similar insurance clause was involved. The insuring clause in the McVeigh case insured against 'loss resulting from bodily injuries effected directly, independently and exclusively, of all other causes through accidental means.' McVeigh, the insured, had fallen and 17 days later died as a result of a ruptured appendix and/or peritonitis--the trial court directed a verdict for the insurance company and the Court of Civil Appeals reversed and remanded the cause, stating:

'Upon the whole, we think the evidence raised the issue, and would have justified the jury in finding that the death of Mr. McVeigh was effected directly, independently, and exclusively of all other causes through accidental means, within the terms of the policy, fairly and reasonably interpreted. Therefore hold that the court below erred in directing a verdict for defendant and in rendering judgment accordingly; hence reverse the judgment and remand the cause for further proceedings.'

In overruling a motion for rehearing in the McVeigh case the Court of Civil Appeals further stated:

'Speaking of the combined effect of accident and disease, the doctrine is stated in 1 C.J. 452, 453, Sec. 127(c), that, 'The exception operates to relieve the insurer from liability where the injury and an existing bodily infirmity concur and cooperate to produce the disability or death; but the tendency of the courts, under the settled rules of construction applicable to insurance contracts, is to interpret the clause in a manner favorable to the insured, and the insurer is accordingly held liable where the accident can be considered as the proximate cause of death, although disease may have been present as a secondary cause, or where the death is the reasonable and natural consequence of the injury, although disease may have supervened, or where the accident is the true cause of death or injury and the disease but the occasion. So also if death results from the accident, the fact that but for weakness or infirmities produced by former illness or disease it would not have been fatal will not prevent a recovery'. Aetna Life Ins. Co. v. Hicks, 23 Tex.Civ.App. 74, 56 S.W. 87 (writ denied).

'We think the case should have been submitted to the jury under the doctrine just quoted, and, seeing no reason to change our decision, defendant in error's motion for rehearing is overruled.'

Also in this connection see the following cases in which the McVeigh case is cited: American Casualty Company v. Jones, Tex.Civ.App., 146 S.W.2d 423; 131 A.L.R. 242; Hann v. Life & Casualty Insurance Company of Tennessee, Tex.Civ.App., 312 S.W.2d 261, 265; Commonwealth Casualty & Insurance Company v. Laurence et al., Tex.Civ.App., 223 S.W.2d 337, 339; National Life and Accident Insurance Company v. Brogdon, Tex.Civ.App., 322 S.W.2d 403, 406, 408.

Appellant's points 7 through 13 inclusive, are respectfully overruled.

Appellant's points 1, 7, 8, 14, and 19 are grouped into appellant's second group of points. By these points appellant contends, among other things, that the trial court erred in overruling defendant's motion for instructed verdict, erred in overruling defendant's motion for judgment non obstante veredicto, erred in overruling defendant's various objections and exceptions to Special Issue No. 2 as submitted and defined, and erred in rendering judgment based upon Special Issue No. 2 as submitted and defined, and that the trial court erred in entering the judgment appealed from, etc.

Appellant's points 2, 3, 4, 5, 6, 16, 17, and 18 are grouped into appellant's third group of points. By these points appellant contends, among other things, that the trial court erred in submitting Special Issue No. 2 and in rendering judgment thereon because of 'no evidence', 'insufficient evidence', and because an affirmative answer to Special Issue No. 2 would be against the great and overwhelming weight and preponderance of the evidence, and that the jury's answers to Special Issues Nos. 5 and 6 were against the great and overwhelming weight of the evidence.

Appellees in their brief make the following statements and arguments with reference to the factual aspects of the case as follows:

'E. R. Alexander, the insured, was accidentally injured October 25, 1957, at Leigh, Harrison County, Texas, * * *. He was placed under the care of his family physician (on Oct. 26, 1957--interpolation ours), who treated him until he died November 3, 1957, (S.F. 16). Dr. Hilton had treated the deceased for injuries suffered from a horse fall January, 1957, and for a heart attack which cleared up in about a week (S.F. 35). He was treated in May, 1957, for a heart condition, and was seen again on October 25 or 26th, as a result of the injury in question (S.F. 37). At that time he gave the doctor a statement as to how the injury had occurred and he was treated for a rupture to the kidney and injury to the chest. As a result of this trauma, pneumonia resulted in the chest cavity and blood developed in the urine. (S.F. 39-40). Mr. Alexander's condition grew steadily worse until November 3, 1957, at which time he died, (S.F. 42-43). E. R. Alexander died as a result of said injury and any prior disease he had, if any, was not a contributing factor in his death (S.F. 48). The deceased did not die as a result of a heart condition, nor did it contribute to his death in any way, (S.F. 37). The death of Mr. Alexander was brought about as a result of the accidental injury in question was shown by Dr. Hilton's testimony:

"Q. Let me ask you this question, Doctor, and assuming for the purposes of these three questions that I am going to read to you and ask you, we will assume that Mr. Alexander received an accidental injury. In your opinion, was or not the death of Mr. E. R. Alexander the reasonable and natural consequence of such accidental injury? A. In my opinion, it was.

"Q. All right, making the same assumption, in your opinion, but for the injury received by Mr. Alexander, would he have died at the time that he died? A. I don't think he would have.

"Q. All right, number 3, assuming for the sake of this question now that's true, and also assuming for the sake of this question that Mr. Alexander was suffering from some disease, for instance nephritis, at the time he received this injury, was this disease a primary factor in the cause of his death or a secondary factor, if a factor at all? A. I think it was, if a factor at...

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    ...applying a sole-cause test, to resort to a but-for test as the trial court did and as was done in Pyramid Life Ins. Co. v. Alexander, 337 S.W.2d 813 (Tex.Civ.App.1960, writ ref., n. r. e.). When we have two concurring factors which produce death, one within and the other without the policy ......
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