Southern Life and Health Ins. Co. v. Simon

• Decision Date: 28 June 1967
• Docket Number: No. B--207,B--207
• Citation: 416 S.W.2d 793
• Parties: SOUTHERN LIFE AND HEALTH INS. CO., Petitioner, v. Merla Mae Chevis SIMON et al., Respondents.
• Court: Texas Supreme Court

Page 793

416 S.W.2d 793

SOUTHERN LIFE AND HEALTH INS. CO., Petitioner, v. Merla Mae Chevis SIMON et al., Respondents.

No. B--207.

Supreme Court of Texas.

June 28, 1967.

Barnes & Barnes, Robert E. Barnes, Beaumont, for petitioner.

George W. Brown, Jr., Beaumont, for respondents.

STEAKLEY, Justice.

This suit is an action to recover the death benefits of $2,000.00 under an insurance policy issued by Petitioner, Southern Life and Health Insurance Company. In a trial to the court Respondents were granted judgment for the face amount of the death benefits, together with interest, statutory damages and attorney's fees. The Court of Civil Appeals affirmed. 411 S.W.2d 765. We reverse the judgments below and render judgment for Petitioner.

The named insured was Austin Chevis, a longshoreman. The named beneficiary was his wife, Merla Mae Chevis, who has since remarried and is joined by her present husband. Chevis was killed while loading cargo in the performance of his duties as a longshoreman aboard the 'SS Lena Luckenbach.' He was crushed to death by a forklift truck he was using in the loading operations which crashed through a hatch covering on the shelter deck. The steamship was moored to the docks at the time. She was certified and equipped to carry passengers but had been operated as a freighter since 1961.

The insurance policy forming the basis for the suit carried the following identification on its face in bold type:

'LIMITED ACCIDENT INDUSTRIAL POLICY

This Policy provides benefits for the loss of life, limb or sight by accidental means to travelers or pedestrians limited to conditions herein stated.'

The policy was issued for a consideration of 10 cents a week and insured Chevis 'against the result of bodily injuries * * * effected solely by external, violent and accidental means * * *.' Paragraph 1 of the policy defined the coverage to an insured while a pedestrian. Paragraph 2 defined the coverage to an insured while a traveler. The crucial prerequisites to coverage here are found in paragraph 2 and are indicated by our italics:

'2. Or if the Insured shall By collision of or any accident to any railroad car, Passenger steamship, public omnibus, street railway car, public taxicab, public automobile, public stage or public bus Which is being driven or operated at the time by one regularly employed for that purpose, and inside of which the Insured is legally traveling; or by collision of or by any accident to any private horse drawn vehicle or private motor driven automobile, inside of which the Insured is riding or driving, Or any motor driven truck, inside of which the Insured is riding or driving, or if a street car motorman or street car conductor in addition to being covered as an individual by all the above provisions of the Policy he shall also be covered, while actually operating a street car in the line of his employment when injured by collision of or accident to the street car which he is operating; or by any accident to any passenger elevator, inside of which the Insured is riding as a passenger; provided that in all cases referred to in this paragraph there shall be some external or visible injury on the said vehicle or elevator of the collision, or accident, provided that an injury to the tire on such vehicle shall not be considered an injury to the vehicle, and provided that this Policy does not cover Insured while riding in or on a motorcycle or in or on any side car or other attachment to a motorcycle--And provided that except as to railroad passenger cars, passenger steamships, street cars and elevators the collision or accident must occur on a public highway as heretofore defined.'

The Court of Civil Appeals held that the accident to Chevis occurred under circumstances meeting the conditions of the insurance contract. The Court relied principally upon the decision of this Court in Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953) where it was held that an airplane pilot was a passenger within the provisions of the insurance contract there under review. The decision was premised on the fact...