Republic Nat. Life Ins. Co. v. Heyward

• Decision Date: 01 June 1978
• Docket Number: No. 5103,5103
• Citation: 568 S.W.2d 879
• Parties: REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Velma L. HEYWARD, Appellee.
• Court: Texas Court of Appeals

Page 879

568 S.W.2d 879

REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Velma L. HEYWARD, Appellee.

No. 5103.

Court of Civil Appeals of Texas, Eastland.

June 1, 1978.

Rehearing Denied and Supplemental Opinion June 29, 1978.

Earle Cobb, Jr., Cobb, Thurmond & Bain, Inc., San Antonio, for appellant.

Oliver S. Heard, Jr., San Antonio, Thomas Goggan, Goggan & Cain, Austin, for appellee.

McCLOUD, Chief Justice.

This is a suit for accidental death benefits. The insured was intentionally shot and killed.

Velma L. Heyward, the named beneficiary of a group life insurance policy insuring the life of her husband, Bennie Heyward, sued the insurer, Republic National Life Insurance Company, seeking recovery of benefits under an accidental death rider to the policy. The policy provided for life insurance based upon the annual salary of the insured and accidental death benefits of $12,000 under the accidental death rider. The insurer paid the basic $3,000 life insurance proceeds to plaintiff, but refused to pay the additional $12,000 under the accidental death rider. Following a jury trial, judgment was entered for plaintiff for $12,000, the accidental death benefits, plus interest and penalty. Plaintiff was awarded attorney's fees of $65,000, but the judgment provided that if defendant did not appeal the cause, the judgment should be credited with $15,000. The judgment further provided that if defendant should appeal to the Court of Civil Appeals, but the case not carried by writ of error to the Supreme Court of Texas, then the judgment should be credited with the sum of $7,500. Defendant, Republic National Life Insurance Company, has appealed.

The instant controversy has heretofore been before our Supreme Court. Heyward v. Republic National Life Insurance Company, 527 S.W.2d 807 (Tex.Civ.App. San Antonio 1975), aff'd, 536 S.W.2d 549 (Tex.1976).

The controlling issues are whether the insured, Bennie Heyward, died solely and independently of all other causes from accidental means, and whether the insured was participating in or committing a felonious act at the time of his death.

The insured was intentionally shot and killed by Oscar Anderson. The insured and James Etta Anderson, mother of Oscar Anderson, were living together at the time of the killing. They had lived together for several years. During the same period of time, the insured also lived periodically with plaintiff. Both plaintiff and James Etta Anderson testified that they were each married by common law to the insured at the time of his death. Oscar Anderson lived with the insured and James Etta Anderson. On September 23, 1973, while the insured and Oscar Anderson were engaged in a fight at the home of the insured, Oscar Anderson obtained possession of insured's 357 magnum revolver and shot the insured five times. After shooting insured, Anderson took a knife and administered numerous deep cuts on the insured's body.

The accidental death rider in issue provides in part:

"If a person, while insured under this Section of the Group Policy, sustains an injury effected solely through external, violent and accidental means and as a result thereof, directly and independently of all other causes, suffers a loss specified below within ninety days following the date of such injury, the Company, subject to all provisions of the Group Policy, will pay

(a) the Principal Sum for loss of life;

Benefits shall not be payable for any loss to which a contributing cause is

(e) participation in or as the result of the commission of a felonious act."

Special Issues 1 and 2 were submitted and answered by the jury as follows:

"SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that the death of Bennie Heyward on September 23, 1973 resulted from injuries through accidental means?

You are instructed that the test of whether injuries resulting in death is through 'accidental means' within the terms of an insurance policy is not to be determined from the viewpoint of the one who inflicts the injuries resulting in death, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability the other party would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that the other party would probably kill him, then his death was accidental.

Answer 'We do' or 'We do not'.

We, the Jury, answer: We do.

SPECIAL ISSUE NO. 2

Do you find from a preponderance of the evidence that a contributing cause of the occurrence in question between Bennie Heyward and Oscar Anderson that resulted in the death of Bennie Heyward was not his participation in or result of his commission of a felonious act?

You are instructed that in this case a 'felonious act' means committing an offense of assault with intent to commit murder if such person, with the intent to commit murder, attempts the use of unlawful violence upon another person or uses any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability to commit murder. 'Murder' means the voluntary killing of a person with malice aforethought, which is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief.

Answer 'It was' or 'It was not'.

We, the Jury, answer: It was not."

First, we note that defendant's first and second points of error, that the court erred in overruling its motions for "Instructed Verdict" and " Judgment N.O.V.", fail to comply with the requirements of Rule 418, T.R.C.P., that points of error "direct the attention of the court to the error relied upon." The points are too general. Tindall v. Tacconelly, 328 S.W.2d 909 (Tex.Civ.App. San Antonio 1959, writ ref. n. r. e.). Furthermore, the grounds listed in defendant's motion for instructed verdict were not carried forward as assignments of error in its amended motion for new trial. The assignment of error merely states that the court erred in overruling defendant's motion for instructed verdict. Such inadequate assignment of error cannot form the basis for a proper point of error. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Tennell v. Esteve Cotton Company, 546 S.W.2d 346 (Tex.Civ.App. Amarillo 1976, writ ref. n. r. e.). However, after examining the statement and argument contained in defendant's brief relating to its first and second points of error, we will consider defendant's Point of Error No. 2, that the court erred in overruling its motion for judgment non obstante veredicto. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). Defendant argues under its first and second points of error that there is no evidence the death of the insured was caused solely and independently of all other causes by accidental means. We disagree.

The insured's death might be caused solely by accidental means even though it resulted from injuries intentionally inflicted by another. Our Supreme Court in the prior appeal of the instant case, Republic National Life Insurance Company v. Heyward, 536 S.W.2d 549 (Tex.1976), expressly approved the rule to be applied as stated in Releford v. Reserve Life Insurance Co., 154 Tex. 228, 276 S.W.2d 517 (1955), wherein the court said:

". . . As stated in the Hutcherson case (Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923), the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the Oscar Anderson, his mother James Etta Anderson, and Oscar's sister and brother, Marcilee Anderson and Karl Hammond, testified concerning the events leading up to the shooting. These were interested witnesses and the jury was not bound by their testimony. Praetorian Mutual Life Insurance Company v. Sherman, 455 S.W.2d 201 (Tex.1970); Aetna Life Ins. Co. v. Hagemyer, 53 F.2d 636 (5th Cir. 1931). The jury could not, however, find the converse of such testimony in the absence of independent evidence to support such finding. Briscoe v. Laminack Tire Service, Inc., 546 S.W.2d 695 (Tex.Civ.App. Texarkana 1977, writ ref. n. r. e.); USLIFE Title Insurance Company of Dallas v. Rossco, Incorporated, 550 S.W.2d 419 (Tex.Civ.App. Eastland 1977, writ ref. n. r. e.).

killing, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability his wife would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that she would probably kill him, then his death was accidental. This was the jury question under the facts in this case."

There is testimony that the insured, Heyward, and James Etta Anderson got into an argument at about 10:00 p. m. on September 23, 1973, at their home; Heyward "slapped" James Etta Anderson who had only recently been released from the hospital; Oscar's sister, Janice Anderson, saw Oscar at the store and told him Heyward had "jumped" on their mother; Oscar came home about midnight; Heyward and James Etta Anderson were in their bedroom; it was quiet at the time; Oscar knocked on the bedroom door; an argument between Oscar and Heyward ensued; Oscar went to his bedroom; Heyward followed with his 357 magnum stuck under his belt; Heyward attempted to call the police; the telephone was in Oscar's room; Heyward swung at Oscar; they began to scuffle; Heyward's 357 magnum was knocked out of his hand; Oscar and Heyward wrestled on the floor for the gun; Oscar got the gun; Oscar started out the door; Heyward was getting up and coming toward Oscar; Oscar turned and shot Heyward; Oscar continued to shoot until the gun was empty; he then took out his knife and started cutting Heyward; the pathologist testified that Heyward was hit by five shots; three shots entered Heyward's back.

In considering defendant's "no...