Republic Nat. Life Ins. Co. v. Heyward

• Decision Date: 14 April 1976
• Docket Number: No. B--5621,B--5621
• Citation: 536 S.W.2d 549
• Court: Texas Supreme Court
• Parties: REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Petitioner, v. Velma L. HEYWARD, Respondent.

Page 549

536 S.W.2d 549

REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Petitioner, v. Velma L. HEYWARD, Respondent.

No. B--5621.

Supreme Court of Texas.

April 14, 1976.

Rehearing Denied May 5, 1976.

Cobb, Thurmond & Bain, Earle Cobb, Jr. and J. W. Dewbre, San Antonio, for petitioner.

Oliver S. Heard, Jr., San Antonio, Thomas S. Goggan, III, Austin, for respondent.

DOUGHTY, Justice.

Velma L. Heyward was the named beneficiary of a group life insurance policy issued by Republic National Life Insurance Company and insuring the life of her husband, Bennie T. Heyward. She brought this suit to recover benefits under an accidental death rider to the policy. At the close of plaintiff's evidence the trial court instructed a verdict for Republic. The Court of Civil Appeals has reversed and remanded. Tex.Civ.App., 527 S.W.2d 807. We affirmed the judgment of the Court of Civil Appeals.

The pertinent provisions of the accidental death rider are as follows:

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.

The evidence introduced by plaintiff reveals that Bennie Heyward died on September 23, 1973, from multiple gunshot wounds. The Medical Examiner's Report shows that there were five gunshot wounds in his body two entering from the front and three from the back; in addition, there were multiple lacerations on his head and back made by a sharp object, possibly a knife. One 357 magnum bullet was recovered. The Medical Examiner's Report concluded that the manner of death was homicide. The Medical Examiner testified that in his opinion insured was intentionally shot by another.

Plaintiff's proof showed that at the time of his death Bennie Heyward was an employee of the City of San Antonio and was covered by the above Group Policy with the accidental death rider. Republic paid the basic $3,000.00 life insurance benefits to plaintiff, but refused to pay the additional $12,000.00 under the accidental death provisions.

Portions of the depositions of James Edda Anderson and Oscar M. Anderson were introduced into evidence. They both testified that they lived at 311 Vine Street (the place where insured's death occurred, according to the death certificate), but they refused to answer any other questions on the ground that their answers might tend to incriminate them.

Antone Dykes, an ordained minister, testified that he was acquainted with insured, and that his reputation for being a lawabiding citizen and a peaceful person was good.

Based on the above evidence the trial court directed a verdict for the insurance company. Republic contends that the directed verdict was proper because plaintiff failed to produce any evidence that Bennie Hayward died from injuries 'effected solely through . . . accidental means,' and alternatively because there was no evidence that 'a contributing cause' of death was not 'participation in or as the result of the commission of a felonious act.'

I.

The first issue presented by Republic's points of error is: does the above evidence, construed most favorably to plaintiff, raise a question of fact as to whether Bennie Heyward's death was accidental under the terms of the policy? Republic admits that the policy in question was in force at the time of insured's death. Republic also admits that plaintiff's evidence raised a fact issue as to whether insured's injuries were effected solely through violent and external means as those terms were used in the policy. Republic denies, however, that insured's injuries were 'effected solely through . . . accidental means.' No definition of the term 'accidental means' is provided by the policy. Republic contends that, under the Texas cases defining similar provisions, a death is not effected solely through accidental means if it results from injuries intentionally inflicted by another.

In Releford v. Reserve Life Insurance Co., 54 Tex. 228, 276 S.W.2d 517 (1955), insured died from injuries intentionally inflicted by his wife. Insured's policy provided indemnity against loss of life 'resulting from accidental bodily injuries.' Reversing the Court of Civil Appeals' judgment for the insurance company, this Court held that the court below had applied the wrong test to determine liability under the policy. The Per Curiam opinion states, at page 518:

In reaching its conclusion the Court (of Civil Appeals) seems to have given controlling weight to its finding that 'viewed from the standpoint of Velma Releford' the deceased was making an unlawful assault upon her and she was acting 'in her own self-defense.' 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 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. (Emphasis added)

This test (referred to below as the Hutcherson test) has been consistently followed in Texas to determine whether death intentionally caused by another is accidental within the meaning of an insurance policy. Seaboard Life Insurance Co. v. Murphy, 134 Tex. 165, 132 S.W.2d 393 (1939); Spencer v. Southland Life Insurance Co., 340 S.W.2d 335 (Tex.Civ.App.--Fort Worth 1960, writ ref'd); National Life & Accident Insurance Co. v. Hodge, 244 S.W. 863 (Tex.Civ.App.--Texarkana 1922, no writ); Great American Reserve Insurance Co. v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.--Tyler 1971, writ ref'd, n.r.e.); Ritchie v. John Hancock Mutual Life Insurance Co., 521 S.W.2d 367 (Tex.Civ.App.--Waco 1975, no writ). Under the Hutcherson test, Bennie Heyward's death might be accidental even though it resulted from injuries intentionally inflicted by another.

Republic contends, however, that the Hutcherson test does not apply where the policy covers death 'by accidental means' rather than 'accidental death.' Republic cites numerous Texas cases which distinguish between coverage for accidental death and coverage for death by accidental means; Republic argues that under these authorities, where death results from the actions of another person, the death is not by accidental means unless the actor did not intend to inflict the fatal injuries. We disagree.

First, Republic cites no Texas authority, nor have we found any, for the proposition that injuries are not effected through accidental means merely because the assailant intentionally inflicted them. To the contrary, several Texas courts have applied the Hutcherson test to situations similar to the case at hand under very similar policy provisions. In Texas Prudential Insurance Co. v. Turner, 127 S.W.2d 563 (Tex.Civ.App.--Beaumont 1939, writ dism'd), insured died from gunshot wounds received in an affray. Insured's life insurance policy obligated insurer to pay double indemnity if insured's death resulted from bodily injury sustained 'solely through external, violent and accidental means.' The Court of Civil Appeals, applying the Hutcherson test, held that insured's death was not sustained through accidental means because insured, 'by his conduct on the occasion in question, provoked the difficulty with Garrett under conditions which would have led a reasonably prudent man to believe that Garrett would shoot him if he continued the assault.' 127 S.W.2d at 566.

In Life & Casualty Insurance Co. v. Martinez, 299 S.W.2d 181 (Tex.Civ.App.--San Antonio 1957, no writ), the insured was shot by a police officer while fleeing from the officer. The court reversed and remanded for a new trial a judgment for the beneficiaries of insured's accident insurance policy, on the ground that the trial court did not apply the correct test to determine whether the insured's death was accidental. The policy in question covered death 'from violent, external and accidental means.' Citing Releford, supra, the court stated that the determination of whether the death was by accidental means must be determined from the viewpoint of the insured, and that the evidence presented a question of fact 'whether insured, from his viewpoint, should have anticipated that in all reasonable probability the policeman would kill him if he did not stop.' 299 S.W.2d at 183.

See also Perry v. Aetna Life Insurance Co., 380 S.W.2d 868 (Tex.Civ.App.--Tyler 1964, writ ref'd, n.r.e.); National Life and Accident Insurance Co. v. Knapp, 430 S.W.2d 84 (Tex.Civ.App.--Houston (14th Dist.) 1968, writ ref'd, n.r.e.); Great National Insurance Co. v. Legg, 444 S.W.2d 324 (Tex.Civ.App.--El Paso, 1969, writ ref'd, n.r.e.); American National Insurance Co. v. Garrison, 97 S.W.2d 534 (Tex.Civ.App.--Eastland 1936, writ dism'd); Georgia Casualty Co. v. Shaw, 197 S.W. 316 (Tex.Civ.App.--Galveston 1917, writ dism'd); Metropolitan Life Insurance Co. v. Ray, 105 S.W.2d 377 (Tex.Civ.App.--Texarkana 1937, no writ); Stevenson v. Reliable Life Insurance Co., 427 S.W.2d 945 (Tex.Civ.App.--San Antonio 1968, no writ); Old National Life Insurance Co. v. Holley, 216 S.W.2d 676 (Tex.Civ.App.--Fort Worth 1949, no writ), and Aetna Life Insurance Co. v. Hagemyer, 53 F.2d 636 (5th Cir. 1931), cert. denied, 285...