Washington Fidelity Nat. Ins. Co. v. Williams
| Decision Date | 11 October 1930 |
| Docket Number | No. 12361.,12361. |
| Citation | 33 S.W.2d 796 |
| Parties | WASHINGTON FIDELITY NAT. INS. CO. v. WILLIAMS et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; W. W. Cook, Judge.
Action by Eva Williams and others against the Washington Fidelity National Insurance Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
Bonner, Bonner & Childress, of Wichita Falls, for appellant.
Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and Clyde F. Winn, of Waxahachie, for appellees.
Eva Williams and her daughter, Gladys Williams, feme soles, filed suit against the Washington Fidelity National Insurance Company, a private corporation, hereinafter called insurance company, alleging the death of the husband and father, Walter Williams, on or about May 10, 1928. They alleged that, at the time of said Walter Williams' death, he was insured in a certain policy of insurance "No. Q. O. 11552," and that the plaintiffs were beneficiaries under said policy. They further pleaded: "That said policy of insurance so issued and delivered to Walter Williams as the insured and the plaintiffs hereinabove named as the beneficiaries insured the said Walter Williams with Eva Williams, his wife, and Gladys Williams, his daughter, as beneficiaries against losses specified in said policy of insurance, resulting, directly and independently of all other causes, from personal bodily injuries effected during the life of such policy through external, violent and accidental means (a) while actually riding in, operating, adjusting, cranking or repairing an automobile, (b) by being struck by an automobile, knocked down or run over by it; said policy further providing that if such injuries shall within ninety days from the date of accident, and independently of all other causes, result in the loss of the life of the insured, the defendant company agrees to pay to the beneficiaries the sum of $1,250.00."
They further alleged that yearly premiums had been paid on said policy, including premiums for the year in which Walter Williams died, and that said policy was in full force and effect at the time of Walter Williams' death, to wit, May 10, 1928. They further pleaded:
They further pleaded that proof of loss had been given in due time, and the defendant had denied liability and had refused to pay the loss, and that plaintiffs had employed Clyde F. Winn, an attorney at Waxahachie, Tex., and Weeks, Morrow, Francis & Hankerson, attorneys at law, of Wichita Falls, Tex., to file and prosecute their claim under said policy, and had become liable, bound, and promised to pay the sum of $500 as attorneys' fees, in addition to the amount allowed by law as attorneys' fees.
The defendant answered by a general denial, and a prayer that the petition be dismissed and it be discharged with its costs, and specially denied that the alleged injury was one resulting from assured's "riding in, operating, adjusting, cranking or repairing an automobile, or by being struck by an automobile, knocked down or run over by it," and that therefore said injury was not within the scope of the policy sued on.
Defendant further alleged that Walter Williams was also insured in the National Life & Accident Insurance Company, and also had a policy in the Grand Lodge of Colored Knights of Pythias of Texas. That the first policy was in the sum of $145, and the latter policy was in the sum of $500, and that Walter Williams had made application to the defendant for the policy of insurance herein sued upon and had not given any notice to it that he carried any accident insurance in any other company. Therefore, defendant prayed that, even though liability be established against it on the policy, that liability should be only for such portion of the indemnity promised as said indemnity bears to the total amount of all the insurance held by Williams and in force at the time of his death.
A trial was had on October 17, 1929, and the cause was submitted to a jury on special issues. The issues and answers thereto are as follows: (1) The jury found from a preponderance of the evidence that on or about May 10, 1928, Walter Williams received personal bodily injury, such as are complained of in plaintiffs' first amended original petition; (2) the jury found from a preponderance of the evidence that such injuries were received through external, violent, and accidental means while repairing an automobile; (3) the jury found from a preponderance of the evidence that such injuries, within 90 days from the date they were received, directly and independently of all other causes, resulted in death to the said Walter Williams; (4) the jury found that a reasonable attorneys' fee for the filing and prosecution of the suit was $250.
Upon this verdict, the trial court found that the plaintiff was entitled to recover of and from said defendant the sum of $1,144, together with interest thereon from May 1, 1929, together with 12 per cent. thereof as a penalty accruing on account of the failure of the defendant company to pay the amount due under the policy within 30 days from and after the date of the demand thereof, together with the further sum of $250 as attorneys' fee.
It was further ordered and decreed that Eva Williams and Gladys Williams, both feme soles, have and recover from the insurance company the sum of $1,531.28, said amount to be divided equally between them.
It was further ordered that $1,144 of the amount above set forth bear interest at the rate of 6 per cent. per annum from and after May 1, 1929, and the balance of $387.28 bear interest from the date of the judgment at the rate of 6 per cent. per annum. From this judgment the defendant has appealed.
Opinion.There are 56 propositions in appellant's brief, but in discussing them we can group a number of the propositions, which we will do.
Propositions 1 and 2 complain of the action of the trial court in overruling the general demurrer of defendant below, inasmuch as plaintiffs did not set out the policy sued upon in hæc verba, or attach the same as an exhibit. The policy contains this clause: "This policy, however, does not cover anyone employed as a public or private chauffeur or driver, automobile mechanic, machinist, repairer or tester; or injuries, fatal or non-fatal, which are sustained by the insured while or as a result of having violated the law or engaged in any race or speed contest or which do not produce visible contusion or wound on the exterior of the body."
In support of these propositions, appellant cites Travelers' Ins. Co. v. Harris (Tex. Com. App.) 212 S. W. 933; Coyle v. Palatine Ins. Co. (Tex. Com. App.) 222 S. W. 973; Pelican Ins. Co. v. Troy Co-op. Ass'n, 77 Tex. 225, 13 S. W. 980.
In Coyle v. Palatine Ins. Co., supra, the first headnote reads: "Under a policy insuring against damage by tornado, windstorm, or cyclone, expressly excepting from the risk any loss or damage through tidal wave, high water, or overflow, and damage caused by water or rain, whether or not driven by the wind, burden was on insured to show that loss was not among those excepted."
Chief Justice Phillips wrote an addenda to this opinion in approving it. We think that the holding in these cases is that the burden of proof was on the plaintiffs to show that the death of Walter Williams was not due to any of the causes excepted in the paragraph taken above from the policy.
The first paragraph of plaintiffs' first amended original petition specifically sets out the losses and injuries "resulting directly and independently of all other causes, from personal bodily injuries effected during the life of such policy through external, violent and accidental means (a) while actually riding in, operating, adjusting, cranking or repairing an automobile; (b) by being struck by an automobile, knocked down or run over by it."
In the second paragraph is set out the circumstances and causes of the accident, to wit: "Walter Williams sustained accidental personal bodily injuries through external, violent and accidental means in the manner and to the extent hereinafter set forth; that while engaged in taking a tire and rim off his automobile and while bent over in a stooping position and pulling and straining at the rim in an effort to get it off, the deceased accidentally fell backwards on to the ground; that said tire and rim fell on or across the lower part of Walter Williams abdomen, straining, tearing or lacerating the perineal [perineum;] that thereafter and as the direct and proximate result of such injury, the said Walter Williams developed a general septicemia and died as the result thereof on May 25, 1928."
Thus it will be noted that in their description of the accident resulting in death they exclude such accidents as the policy specially excludes, since it says that, Walter Williams "while engaged in taking a tire and rim off his automobile," it is evident that he was not engaged in the act of repairing his employer's automobile as chauffeur. We think the pleadings further show that the injuries were to the exterior of Williams' body. Dr. D. W. King, a colored...
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