Union Central Life Ins. Co. v. Boulware

• Decision Date: 15 March 1951
• Docket Number: No. 4703,4703
• Citation: 238 S.W.2d 722
• Parties: UNION CENTRAL LIFE INS. CO. v. BOULWARE.
• Court: Texas Court of Appeals

Page 722

238 S.W.2d 722

UNION CENTRAL LIFE INS. CO. v. BOULWARE.

No. 4703.

Court of Civil Appeals of Texas, Beaumont.

March 15, 1951.

Rehearing Denied April 25, 1951.

Vinson, Elkins & Weems, Houston, Pitts & Liles, Conroe, for appellant.

W. C. McClain, Conroe, for appellee.

R. L. MURRAY, Justice.

This is an appeal from a judgment in the district court of Montgomery County in favor of Mrs. Narcissa W. Boulware, appellee, against The Union Central Life Insurance Company, appellant, upon a life insurance policy on the life of Cecil C. Boulware, now deceased. The insurance policy provided for payment of $1,000 to Mrs. Boulware upon the death of the insured, Cecil C. Boulware, plus an additional $1,000 if the death of the insured should result directly, independently and exclusively of all other causes from bodily injury effected solely through accidental, external and violent means, provided that such death of the insured was not a risk assumed if it resulted directly or indirectly from any bodily or mental disease or infirmity. Mr. Boulware died July 13, 1949, and the insurance company paid the first $1,000 sum, but payment was refused of the additional $1,000 provided in the policy for double indemnity in case of death by accidental, external and violent means. This suit was for such additional $1,000 The case was tried to a jury and the jury in its verdict found that Mr. Boulware unexpectedly suffered a heat stroke on July 13, 1949; that his death resulted directly, independently and exclusively of all other causes from such heat stroke; that his death did not result directly or indirectly from any bodily or mental disease or infirmity; that it did not result directly or indirectly from bacteria infection; that it did not result in part from heart failure; that Mr. Boulware prior to his death did not suffer from heart trouble or disease; that prior to his death he had not had a goiter; that a reasonable attorneys' fee for services performed and to be performed in this suit for Mrs. Boulware was $500.

Upon the verdict, stipulations and admissions of fact the court entered judgment in favor of the appellee against the appellant for the sum of $1.620, which included $1,000 due under the policy $120 as a penalty and $500 as attorneys' fees.

The appellant's first four points are that (1) death from heat stroke was not a risk assumed in the policy of insurance issued; (2) even though the death of Mr. Boulware was the result of a heat stroke, the death did not result from bodily injury effected solely through accidental, external and violent means, within the double indemnity provisions of the policy sued on; (3) appellee wholly failed to discharge her burden of proof, there being no competent proof that the death of Cecil C. Boulware was not caused in part at least by bodily or mental disease or infirmity; (4) the trial court erred in instructing the jury that if a person unexpectedly suffered a heat stroke, same was not to be considered as being any bodily or mental disease or infirmity.

The double indemnity provisions of the insurance policy contained the following:

'If the death of the insured shall have resulted directly, independently and exclusively of all other causes from bodily injuries effected solely through accidental, external and violent means * * * the amount payable under said policy shall be increased as follows: * * * an amount equal to the face of the policy shall be paid * * *.'

Death is not a risk hereby assumed if it results directly or indirectly (c) from any bodily or mental disease or infirmity or from bacterial infection other than infection occurring simultaneously with and in consequence of a wrong caused by accidental, external and violent means.'

Briefly summarized, the evidence in regard to the circumstances surrounding Mr. Boulware's death is as follows: On the Monday morning preceding the Wednesday on which he died he was riding horseback tending his cattle, riding through thick brush in the hot sun. On this day his face became red and he leaned over from his horse and vomited five or six times, he seemed confused and upset late that evening. The following day he was out in the sun most of the day building crates and drenching sheep. He was pale and complained of feeling tired and weak. That night he complained of pains in his stomach and ate no supper. On the following day he was out riding after his cattle during the morning and came home about noon, at which time he had his son attend to his horse for him, although he usually did this himself. He lay down on a couch in his house and did not eat any lunch saying he was too hot and tired. That afternoon he drove his son to a Scout camp in a truck, unloading some equipment on it and returned home during which time he was silent and his face was flushed. After he returned home he went upstairs to his room and no one saw him from that time until he was discovered dead about three hours later. All three days were hot July summer days with the temperature over 100 degrees. He was a rancher and farmer and his usual duties included 'riding after cattle' and general farm chores. An autopsy was performed the day following the day of his death by two doctors, both pathologists at Herman Hospital in Houston. The testimony of both doctors gives in detail their findings upon the autopsy. Dr. Keiller testified that from her findings there was no evidence of a heart attack and she was looking especially for evidence of a heart attack; that her conclusion was that Cecil C. Boulware died of a heat stroke; that in her opinion the death of Cecil C. Boulware resulted solely, directly and independently of all other causes from heat stroke. Dr. Abbott, the other doctor who performed the autopsy also testified that in his opinion Mr. Boulware died as a result of a heat stroke; that he examined the thyroid glands and found no evidence of a goiter and that a heat stroke was the immediate cause of his death; that there was no other disease or anything contributing to his death other than heat stroke. There was other medical testimony concurring with the opinion of Drs. Keiller and Abbott. The evidence was sufficient to support the findings of the jury that Mr. Boulware's death was the result of a heat stroke, that it resulted directly, independently and exclusively of all other causes of a heat stroke and did not result directly or indirectly from any bodily disease or infirmity or bacterial infection; that it did not result in part from heart failure; that prior to his death he did not have a goiter.

The next question for consideration is the appellant's contention that death from heat stroke was not a risk assumed in the accidental death provisions of its policy issued on the life of Mr. Boulware. It says that a heat stroke is a disease and quotes the following definition of the word 'disease' from Webster's New International Dictionary as follows: 'Pathologically, disease is an alteration of the human body * * *, or of some of its organs or parts interrupting or disturbing the performance of the vital functions, or a particular instance or case of this; any departure from the state of health presenting marked symptoms; also a specific kind of such alteration; a particular ailment having specific symptoms or causes.'

Dr. Abbott also testified that this was a good definition of the word disease and was asked the question, 'And disease has been defined, has it not, and is it not considered as 'a condition in which bodily health is seriously attacked deranged or impaired; sickness; illness as is mortality from disease a particular form or instance of such disease; a malady; an ailment; as infectious disease "? He answered, 'Yes, definitions in medicine are oftentimes extremely hard to trail down because one person's definition means one thing and to another person it means another. I think this is as good a general description as you can find.'

On further cross-examination by appellant's counsel Dr. Abbott testified, as quoted in appellant's brief:

'Q. But a heat stroke is considered as an illness just as Webster defines it, is it not? A. You want my opinion?

'Q. Yes. Is that generally so considered? It is a disease is it not? A. Yes. * * *

'Q. Heat stroke comes under disease? A. Yes.

'Q. And that is a common understanding of the word disease? A. Yes.'

Dr. Keiller, in her testimony, also described heat stroke as follows: 'Heat stroke is also called heat hyperpyrexia. It is the result of exposure to excessive temperatures, with or without exposure to sun, and with an increased humidity in some cases. The effect is an alteration in the heat regulating mechanism so that heat is not dissipated from the body in the way that it should be. The result of that is that sometimes changes take place in the body and the nervous system, perhaps...