Stroburg v. Insurance Company of North America

Decision Date03 March 1971
Docket NumberNo. B--2323,B--2323
Citation464 S.W.2d 827
PartiesJay B. STROBURG, Petitioner, v. INSURANCE COMPANY OF NORTH AMERICA, Respondent.
CourtTexas Supreme Court

Jones, Blakeslee, Minton, Burton & Fitzgerald, Bill Fitzgerald, Austin, for petitioner.

Clark, Thomas, Harris, Denius & Winters, E. Barham Bratton and Barry Bishop, Austin, for respondent.

CALVERT, Chief Justice.

Jay B. Stroburg, son of John B. Stroburg, Jr., brought suit as the beneficiary of a policy of insurance issued by respondent and insuring his father against bodily injuries, including death, caused by accident. Upon a jury verdict, the trial court rendered judgment for the plaintiff. The court of civil appeals has reversed and rendered judgment that the plaintiff take nothing. 456 S.W.2d 402. We reverse the judgment of the court of civil appeals and remand the cause to that court for further consideration.

The insured was involved in a one car collision in the 2200 block of South Lamar in Austin on January 27, 1968. He had been proceeding in a northerly direction on Lamar, a four-lane thoroughfare, which is generally straight and level at the point of the collision. His automobile left the northbound lane, crossed the two southbound lanes, ran into a service station, and struck a six-inch steel pole. The insured incurred serious and extensive bodily injuries in the collision, including several broken bones and major internal injuries, and died on February 22, 1968. After his father's death, petitioner brought suit for the principal sum of the policy in the amount of $20,000, plus statutory penalties and attorney's fee.

By the terms of its policy, the insurer agreed to insure '* * * against specified loss * * * (including loss of life) resulting directly and independently of all other causes from bodily injuries caused by accident * * *.' The policy expressly excluded loss caused by or resulting from 'illness, disease, * * * bodily infirmity or any bacterial infection other than bacterial infection occurring in consequence of an accidental cut or wound.'

The plaintiff alleged that the death of his father resulted directly and independently of all other causes from bodily injuries suffered in the accident of January 27th and from complications thereof. Defendant pleaded a general denial and that the deceased did not lose his life 'directly and independently of all other causes from bodily injuries caused by accident * * *.' Defendant also pleaded its non-liability by virtue of the exclusion quoted above. It was the theory of the defendant that a bleeding ulcer and emphysema contributed to cause the insured's death. Under the provisions of Rule 94, Texas Rules of Civil Procedure, the plaintiff had the burden of proving not only that the death of his father resulted directly and independently of all other causes from bodily injuries caused by accident but also that it was not caused by and did not result from the ulcer and emphysema.

As a basis for the trial court's judgment in his favor, plaintiff secured jury answers as indicated to the following special issues:

'1. Do you find from a preponderance of the evidence that the death of John B. Stroburg, Jr., on February 22, 1968 resulted directly and independently of all other causes from bodily injuries, if any, caused by the automobile accident of January 27, 1968?

ANSWER Yes.

2. Do you find from a preponderance of the evidence that the ulcer of John B. Stroburg, Jr., if any, did not contribute to his death?

ANSWER It did not contribute to his death.

3. Do you find from a preponderance of the evidence that the emphysema of John B. Stroburg, Jr., if any, did not contribute to his death?

ANSWER It did not contribute to his death.'

In reversing the trial court's judgment, the court of civil appeals held that the evidence did not support the jury finding that the insured's death resulted 'directly and independently of all other causes from bodily injuries' caused by the automobile accident. In this connection, the court stated:

'We find that the evidence shows that two or more causes concurred to produce death, only one being accidental bodily injury. The undisputed evidence shows that a pre-existing bleeding ulcer induced fainting or weakness to cause the accident. There was direct testimony not refuted by other direct evidence that chronic emphysema caused one lung to collapse in the hospital which created a burden the remaining diseased lung was incapable of bearing. The ulcer and chronic emphysema concurred with accidental injuries to cause death.'

Based upon these findings, the court of civil appeals concluded that the insured's death did not 'fall within the coverage provision of the accident policy sued on, and there is no evidence to support the jury findings * * *.' Having held that the death did not fall with the policy's coverage, the court of civil appeals did not discuss the applicability of the policy's exclusion provision.

The conclusion of the court of civil appeals was based upon the official death certificate of the insured and the testimony of Drs. A. Quandros DaSilva and William S. Moskovitz. We first examine the court's conclusion that chronic emphysema concurred with accidental injuries to produce death.

The death certificate, executed by Dr. Moskovitz, recited that the 'immediate cause of death' was 'generalized peritonitis subphrenic abscess; gastro-cutaneous fistula.' The immediate cause was said to be due to 'Ruptured colon, spleen, stomach and liver,' reported to be due to 'Bleeding duodenal ulcer causing car accident.' Space for showing 'Other significant conditions contributing to death but not related to the terminal disease condition,' was filled in: 'Compound Fr mandible; fractured pelvis, inanition; bullous emphysema, Fractured ribs; pneumothorax.' Finally, the death certificate required that the person executing it '(d)escribe how injury occurred.' In the space provided for an answer, Dr. Moskovitz reported: 'Bleeding ulcer led to syncope ('a brief loss of consciousness'--The American Heritage Dictionary) causing car wreck which caused car wreck and the multiple injuries.'

The testimony of Dr. DaSilva, much of which is quoted in the opinion of the court of civil appeals and need not be repeated here, might well support a fact finding by a judge or jury that emphysema was a contributing cause of the insured's death, but that does not solve our problem; our problem is whether there is support in the evidence for the jury's findings that the insured's death resulted directly and independently of the emphysema from bodily injuries caused by the automobile accident, and that emphysema did not contribute to his death.

" Independently' means 'solely,' 'only,' 'standing alone.' (cases cited). The logical meaning of the policy terms (independently of other causes) limits the coverage to accidental bodily injuries which are the sole cause of death.' Mutual Benefit Health & Accident Ass'n v. Hudman, 398 S.W.2d 110, 112 (Tex.Sup.1965). But, even so, '(r)ecovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury.' Hudman, supra. The jury was so instructed, and we are satisfied that it could reasonably have concluded from the testimony that the insured's condition of emphysema was so insubstantial in the scale of causation that it did not, in legal contemplation, contribute to cause his death.

The recitation in the death certificate is at best prima facie evidence that emphysema was a significant condition contributing to the insured's death. Art. 4477, Rule 54a, Vernon's Ann.Tex.Civ.Stats. It was subject to explanation and rebuttal. Dr. DaSilva persisted in his opinion that emphysema contributed to cause the insured's death, but it is obvious from his testimony that he was using a strictly medical rather than a legal test of substantiality. In this connection, he testified as follows:

'I was trained in this way, in that everything that you find abnormal is one step forward to final defeat, and in the particular case, everyone of these abnormalities that were found at autopsy were contributory to his death, and this is the way in which I think this leakage was contributory to his death. This is what I mean by it.'

Dr. Moskovitz was examined rather closely concerning the nature of the injuries and the death of the insured. He testified that in his opinion the insured's death was caused by the massive injuries sustained in the wreck. Witness the following questions and answers:

Q. '* * * What caused his death, in your opinion, Doctor, in all reasonable medical probability?

A. It is always...

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