Spencer v. Southland Life Ins. Co.

• Decision Date: 04 November 1960
• Docket Number: No. 16142,16142
• Citation: 340 S.W.2d 335
• Parties: Florence M. SPENCER, Appellant, v. SOUTHLAND LIFE INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 335

340 S.W.2d 335

Florence M. SPENCER, Appellant, v. SOUTHLAND LIFE INSURANCE COMPANY, Appellee.

No. 16142.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 4, 1960.

Rehearing Denied Dec. 2, 1960.

Fender, Sayers & Anderson, and John M. Anderson, Fort Worth, for appellant.

R. L. Dillard, Jr., Curtis White, and D. D. Crawford, Dallas, for appellee.

RENFRO, Justice.

Suit was brought by Florence M. Spencer, widow and beneficiary of Luther George Spencer, against Southland Life Insurance Company to recover the proceeds of an accident insurance policy. The trial court, holding that the death of Spencer, the insured, was not the result of accidental bodily injuries, rendered summary judgment in favor of defendant. Plaintiff contends a fact issue was presented as to whether or not Spencer's death was accidental.

The policy in question provided that the defendant 'Hereby insures Luther George Spencer (hereinafter called 'Insured') under classification D* by occupation a Proprietor-Superintendent Dairy subject to all the provisions, exclusions, and conditions of this policy, against loss, to the extent hereinafter provided, resulting from accidental bodily injuries which are the direct and independent cause of the loss and are sustained by the insured during the term of this policy * * *.'

The circumstances of the death of Spencer are shown by two affidavits submitted with proof of loss by plaintiff to defendant. Wayne Horton, age 15, nephew of insured, swore he was with his uncle in a pickup truck on August 8, 1959. As they drove through Euless they saw a policeman at the side of the street. The officer waved and insured waved back. They kept going. After proceeding 3/4 mile affiant saw the officer following them and so informed insured. Insured said, 'It looks like they've got us * * * It might as well be a good one.' Insured then cut off the highway onto a gravel road that makes a loop and comes back to the highway about a mile further on. They made the loop 'going pretty fast'. The police car was following all the time. They returned to the highway and on to the dairy barn which was their original destination. 'He parked the pickup and I had already gotten out when the officer drove up and stopped. We were parked heading northeast and the officer pulled in at the back of our pickup with his car pointing toward our right side. I think that Spencer expected to get a ticket for speeding. The officer walked up to us and told us to get in the car with him. That's all I remember him saying. He didn't say anything about giving us a ticket. I was going toward the police car and Spencer was getting out of the pickup. I heard Spencer say, 'I'll show you what I'll do' or something like that. Spencer always carried the shotgun in his pickup. It was behind the seat and is a .410. I didn't see him get the gun out of the car and didn't know that he had gotten it out. I didn't turn around when he spoke and the next thing I knew I heard some shots.' Affiant did not remember hearing the officer say anything after he told them to get in the car. After the shooting he heard insured say, "You shouldn't have done that." Affiant 'knew the gun had no shells in it as Spencer never carried a loaded gun.' During all this time the officer 'didn't offer to give us a ticket.'

Officer Kidwell swore that he clocked insured at a speed of 50 miles per hour on the main street in Euless. He turned on his red light, blew his horn and waved for insured to stop, insured made a waving motion with his hand but did not stop. In following insured he attained speeds up to 120 miles per hour. Upon reaching the dairy barn 'I drove in behind him and parked my car about 10 or 15 feet from his truck and my car was facing the right side of his truck. My car was facing a northeasterly direction. I got out of my car, and the driver of the Pick-up, who I later learned was L. G. Spencer, got out of the driver's side of the pick-up. A boy was getting out of the right side of the truck, and I have learned that he is Spencer's nephew, Wayne Horton. I stayed by the door of my car and told them that they would have to have a seat in my car--for racing with a police car. I was going to place them under arrest and bring them back to the Euless Police Station. Spencer did not come toward me but I heard him say, 'I'll show you what I'll do.' Then I saw the stock of a rifle or a shot gun as he was taking it out of the pick-up. I told him to drop the gun back in the truck. He brought the gun up with his left hand on the stock and kept bringing the gun out of the truck. When I saw that he was bringing the gun out of the truck I tried to get over to where Spencer was. I got to a point about three feet behind the tail-gate of his truck and Spencer was bringing the gun around and pointing it in my direction. I told him again to drop the gun. He didn't drop it, but instead he leveled it at me. At that time was when I pulled my pistol.' Affiant intended to shoot the gun out of insured's hand, instead, insured was mortally wounded. Kidwell had never seen insured before and did not learn his name until after the shooting. He did not offer to give insured a ticket while they were in the yard.

Although the affidavits were obtained and submitted by plaintiff, we must, since summary judgment was rendered for defendant, give plaintiff the benefit of every intendment reasonably deducible in her favor and accept the statements therein as true. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Plaintiff does not contend other evidence could be procured and does not contend the affidavits are inaccurate or that they contain anything other than the facts leading up to and culminating in the unfortunate occurrence.

Plaintiff argues that the effect of officer Kidwell's action was an attempt to falsely imprison insured and that insured had a right to use reasonable force to repel such imprisonment, that insured used reasonable force since he used an unloaded shotgun in attempting to protect himself, that Kidwell was the aggressor and committed an unprovoked attack upon insured.

Death is produced by, or as the result of, accidental means when it is not the natural and probable consequence of the means which produced it, or, stated differently, when death does not ordinarily follow and therefore cannot be reasonably anticipated as the result of the use of such means. Seaboard Life Ins. Co. v. Murphy, 134 Tex. 165, 132 S.W.2d 393.

The test of whether the killing is accidental within the terms of an...