Stevenson v. Reliable Life Ins. Co., 14693

• Decision Date: 01 May 1968
• Docket Number: No. 14693,14693
• Parties: Vivian STEVENSON, Appellant, v. RELIABLE LIFE INSURANCE CO., Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 945

427 S.W.2d 945

Vivian STEVENSON, Appellant, v. RELIABLE LIFE INSURANCE CO., Appellee.

No. 14693.

Court of Civil Appeals of Texas.

San Antonio.

May 1, 1968.

Samuel L. Egger, San Antonio, for appellant.

Tom H. King, San Antonio, for appellee.

BARROW, Chief Justice.

This is an appeal from a take-nothing summary judgment entered in appellant's suit to recover accidental death benefits under an insurance policy issued by appellee insuring Richard Stevenson, husband of appellant. Insured died on April 22, 1966, from gunshot wounds inflicted upon him by appellant during an altercation.

The policy provides that if insured shall sustain bodily injuries effected solely through violent, external and accidental means, and such bodily injuries directly and independently of all other causes, shall cause the death of the insured within ninety days from the time such injuries were so sustained, the appellee company will pay to appellant the principal sum of $1,000. Said policy contains an exclusion providing that no benefit shall be payable if the insured's death results from injuries intentionally inflicted upon the insured by himself, while sane, or by any other person other than burglars or robbers.

Appellee's motion for summary judgment, which is supported by the oral deposition of appellant, urges that insured's death was not the result of accidental means and in any event liability is excluded in that he died as the result of appellant's intentional act of shooting him. Appellant did not controvert said motion for summary judgment, but urges the trial court erred in granting the summary judgment in that a fact issue is raised which would support a finding that insured's death was accidental.

In Spencer v. Southland Life Insurance Company, 340 S.W.2d 335 (Tex.Civ.App.--Fort Worth, 1960, writ ref'd), the Court defined this type coverage as follows: '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.' See also: Seaboard Life Ins. Co. v. Murphy, 134 Tex. 165, 132 S.W.2d 393 (1939); Perry v. Aetna Life Ins. Co., 380 S.W.2d 868 (Tex.Civ.App.--Tyler 1964, writ ref'd n.r.e.). The test of whether a 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. Releford v. Reserve Life Ins. Co., 154 Tex. 228, 276 S.W.2d 517 (1953); Spencer v. Southland Life Insurance Co., supra.

The altercation in which Richard Stevenson lost his life took place about 5:00 p.m. at the home of appellant's sister as a climax to several hours of beer drinking by about eight adults. The original argument started between appellant's mother and insured's brother, but later included appellant and her husband. After an exchange of opprobrious epithets, Richard knocked his wife down, pulled up a mail box which was attached to a two-by-four board and started to hit her with the board. Appellant's nephew intervened and was struck the blow intended for her. This allowed appellant the opportunity of regaining her feet and pulling a pistol from her bosom. Richard dropped the mail box when the gun was pointed at him and started after appellant. Despite her repeated verbal warnings, he continued to advance on her while she fired seven shots with the pistol, one striking him...