Western Indemnity Co. v. MacKechnie

• Decision Date: 24 May 1919
• Docket Number: (No. 8119.)
• Citation: 214 S.W. 456
• Parties: WESTERN INDEMNITY CO. v. MacKECHNIE.
• Court: Texas Court of Appeals

214 S.W. 456

WESTERN INDEMNITY CO. v. MacKECHNIE.

(No. 8119.)

Court of Civil Appeals of Texas. Dallas.

May 24, 1919.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by Mrs. Ellen MacKechnie and another against Western Indemnity Company. Judgment for named plaintiff, and defendant appeals. Reversed and remanded.

Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellant.

R. R. Hazlewood, of Amarillo, and Cockrell, Gray, McBride & O'Donnell, of Dallas, for appellee.

TALBOT, J.

This is the second time this case has been before this court. The opinion on the former appeal is reported in 185 S. W. 615. The suit was originally instituted by the appellee, Mrs. Ellen MacKechnie, as guardian of the person and estate of Edward MacKechnie, against the appellant, Western Indemnity Company, a corporation organized under the laws of the state of Texas, and the Western Casualty & Guaranty Insurance Company, a corporation created under the laws of the state of Oklahoma, on an accident insurance policy. Since the former appeal, and prior to the trial resulting in the judgment from which the present appeal is prosecuted, Edward MacKechnie died, and by an amended petition the said Mrs. Ellen MacKechnie and Stewart MacKechnie, as plaintiffs, continued the prosecution of the suit in their own behalf. The petition alleges, in substance, that the said Mrs. Ellen MacKechnie is the surviving wife of Edward MacKechnie; that Stewart MacKechnie is their son, and that they are the only surviving heirs of the said Edward MacKechnie; that the appellant, Western Indemnity Company, has taken over all the business, properties, and insurance policies of its codefendant herein, and has assumed all its liabilities, including the terms and liabilities of the contract herein sued on. The petition further alleges that the Western Casualty & Guaranty Company executed and delivered to Edward MacKechnie on February 20, 1911, its written policy of insurance, whereby it insured the said Edward MacKechnie in the initial principal sum of $5,000, and for a weekly indemnity of $25 for the term of 12 months from the date of said policy, against bodily injuries inflicted, directly and independently of all other causes, through accidental means, which policy, by renewals, was continued in force for the period of three years from its date; that said policy of insurance, by its terms, insured the said Edward MacKechnie against bodily injuries effected, directly and independently of all other causes, through accidental means, and provided that if such injuries should, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent the assured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, and within 200 weeks from date of the accident, should result in the loss of the life of the said Edward MacKechnie, the said insurance company would pay the sum of $5,000, denominated in the policy as the "initial principal sum," and in addition the weekly indemnity as provided for in said policy to the date of the death of the said Edward MacKechnie, plus any accumulations which might have accrued under the terms of the policy at the time such injuries were sustained; that said policy of insurance also stipulated that if such injuries to the said Edward MacKechnie should not result in his death, but should immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation, and during the period of such disability, and within 90 days from the date of the accident, should directly, independently, and exclusively of all other causes result in permanent paralysis, and if within 30 days after the expiration of one year from the date of such paralysis he should be declared by competent and duly constituted medical authority to be permanently paralyzed, and to be thereafter unable to engage in any work or occupation for wages or profit, the Western Casualty & Guaranty Insurance Company would pay him the principal sum of said policy, to wit, $5,000, and in addition thereto the weekly indemnity stipulated to be paid for one year. It is further alleged that on September 25, 1913, the said Edward MacKechnie, while attempting to board a street car in the city of Dallas, did suffer a fall to the ground or pavement, or upon or against said car, and did thereby sustain and suffer bodily injuries which were effected directly and independently of all other causes through accidental means; that said injuries did, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent the said Edward MacKechnie from performing any and every kind of work or duty pertaining to his occupation, and did, during the period of such continuous disability, and within 200 weeks from the date of said accident, result in the death of said Edward MacKechnie; that, even though plaintiffs should be mistaken in stating that said injuries resulted in said Edward MacKechnie's death, they, nevertheless, state that said injuries did, independently and exclusively of all other causes, immediately, continuously, and wholly disable and prevent said Edward MacKechnie from performing any and every kind of duty pertaining to his occupation, and not only did such disability continue from the date of such accident up to the death of said Edward MacKechnie, but said injuries did further, during the period of such disability, and on, to wit, October 25, 1913, and within 90 days from the date of said accident, result directly, independently, and exclusively of all other causes in permanent paralysis of the said Edward MacKechnie, and within 30 days after the expiration of one year from the said date of October 25, 1913, the said Edward MacKechnie was declared by a competent and duly constituted medical authority to be permanently paralyzed, and permanently insane, and to be thereafter unable to engage in any kind of occupation or work for wages or profit; that immediately following said accident, and resulting directly, independently, and exclusively therefrom, the said Edward MacKechnie became, and continued to be, unto his death, insane; that on, to wit, February 3, 1914, the said MacKechnie was adjudged to be insane by the board of lunacy, and by the probate court of Potter county, Tex., and the plaintiff Ellen MacKechnie was by the county court of said county appointed guardian of the person and estate of the said Edward MacKechnie, and continued such up to his death. Plaintiffs also alleged that said policy or insurance contained the further stipulation and provision, as follows, to wit, "Policy to be payable in case of my death to Ellen MacKechnie, whose relation to me is that of wife;" that plaintiffs assume the true meaning of said policy in its entire terms to be that, if said injuries to said Edward MacKechnie should result in his death within 200 weeks from the date of said accident, the "initial principal sum" thereof, together with the the percentage "accumulations" thereunder, should be payable to said Ellen MacKechnie, but that if said injuries should not result in death within that time, but should cause the disability and paralysis of said Edward MacKechnie, and result in his being declared by medical authorities to be paralyzed and disabled, as contemplated by the terms of said policy, then such "initial principal sum" should be paid to the said Edward MacKechnie, and now, he being dead, to his heirs suing herein; and that the further meaning of said policy is that the weekly indemnity thereunder should be at all events paid to said Edward MacKechnie, and now, he being dead, to his heirs suing herein; that, if such be not the true meaning of said policy, then same is by its terms payable entirely to the said Ellen MacKechnie. In any event, both plaintiffs ask and pray that the judgment to be rendered herein shall be rendered altogether in favor of the said Ellen MacKechnie. Plaintiffs assert that by reason of the provisions of the policy the defendant was liable for the initial or principal sum of $5,000, also for the weekly indemnity and accumulations, together with interest, statutory penalties, and attorney's fees. The defendant answered by general denial and by special denial. They denied that either the alleged paralysis or the alleged insanity or the alleged death of the said Edward MacKechnie resulted directly, independently, and exclusively of all other causes from an accident within the provisions of the policy sued on; that, if said Edward MacKechnie suffered from paralysis or insanity, such paralysis or insanity was caused or contributed to by disease or natural causes; that said MacKechnie, prior to, and at the time of, his alleged accident, suffered from the diseases of arteriosclerosis and Bright's disease, and that on account of each and both of said diseases a blood vessel in the brain of MacKechnie on August 25, 1913, long after his alleged accident, became ruptured, which rupture resulted in apoplexy, which apoplexy resulted in the alleged paralysis and insanity. The defendant further alleged that the said MacKechnie, for many years prior to said alleged accident and subsequent thereto, was an habitual and constant user of intoxicating liquor, and that such use of such liquor, either alone or together with said diseases, or with one or the other, caused and contributed to cause said rupture of said blood vessel in said brain, resulting as aforesaid; that such paralysis, insanity, or death, if any, was caused, or contributed to, by such arteriosclerosis, or Bright's disease, or such habitual use of intoxicating liquor, either acting separately or together, producing the alleged paralysis, insanity, or death. They further answered that on or about the 25th day of September, 1913, MacKechnie made claim under his policy for...