Western Indemnity Co. v. MacKechnie

• Decision Date: 01 April 1916
• Docket Number: (No. 7423.)
• Citation: 185 S.W. 615
• Parties: WESTERN INDEMNITY CO. et al. v. MacKECHNIE.
• Court: Texas Court of Appeals

185 S.W. 615

WESTERN INDEMNITY CO. et al. v. MacKECHNIE.

(No. 7423.)

Court of Civil Appeals of Texas. Dallas.

April 1, 1916.

Rehearing Denied April 29, 1916.

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

Suit by Ellen MacKechnie, guardian of Edward MacKechnie, against the Western Indemnity Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Love & Taylor and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for appellants. Henry P. Edwards and Cockrell, Gray & McBride, all of Dallas, and R. R. Hazlewood, of Amarillo, for appellee.

TALBOT, J.

The appellee, as guardian of Edward MacKechnie, instituted this suit against the appellants Western Indemnity Company, a corporation organized under the laws of the state of Texas, and Western Casualty & Guaranty Insurance Company, a corporation created under the laws of the state of Oklahoma, on an accident insurance policy. It is alleged, in substance, that the appellant Western Casualty & Guaranty Insurance Company executed and delivered to Edward MacKechnie, February 20, 1911, its written policy of insurance, whereby it insured the said Edward MacKechnie for the term of 12 months from the date of said policy against bodily injuries effected directly and independently of all other causes through accidental means. That said policy stipulated that if the said Edward MacKechnie should sustain bodily injuries which should immediately, continuously, and wholly disable and prevent him from performing any and every kind of duty pertaining to his occupation, the insurance company would pay him for the period of such total disability a weekly indemnity of $25 per week to an amount not exceeding the sum of $5,000, plus any accumulations which might have accrued under said policy at the time such injuries were sustained. It is further alleged that said policy of insurance also stipulated that if such injuries to the said Edward MacKechnie immediately, continuously, and wholly disabled and prevented 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, the appellant Western Casualty & Guaranty Company would pay him the principal sum of $5,000 of said policy, and in addition thereto the weekly indemnity stipulated to be paid, for one year from the date of such paralysis. That on the 25th day of September, 1913, the said Edward MacKechnie, while attempting to board the car of a street railway company in the city of Dallas, Dallas county, Tex., did suffer a fall to the ground or against said car, and did thereby sustain bodily injuries, which were effected directly and independently of all other causes through accidental means; that said injuries immediately, continuously, and wholly disabled and prevented the said Edward MacKechnie from performing every kind of duty pertaining to his occupation and has continued so to do since the date of said accident. That said injuries not only wholly prevented the said Edward MacKechnie from performing any and every kind of duty pertaining to his occupation, but during the period of such disability and on the 25th day of October, 1913, and within 90 days from the date of said accident, resulted directly, independently, and exclusively of all other causes, in permanent paralysis, and that within 30 days after the expiration of one year from said date of October 25, 1913, the said Edward MacKechnie was declared by competent and duly constituted medical authority to be permanently paralyzed and permanently insane; that appellee, Ellen MacKechnie, is the duly appointed, qualified, and acting guardian of the said Edward MacKechnie, and that the appellant Western Indemnity Company has taken over all the business, properties, affairs, and policies of the appellant Western Casualty & Guaranty Insurance Company, and assumed all its liabilities, including the terms and obligations of the contract herein sued on.

The defenses were: First, that the suit was was prematurely brought, for that by the terms of the policy suit could not be instituted until 3 months from the date of filing proofs of the alleged paralysis, and such proofs had never been filed; second, that for a valuable consideration the assured had settled with appellants and released them from all liability; third, that the assured's paralysis did not result directly, independently, and exclusively of all other causes from the accident in question, but was caused alone by then existing bodily diseases known as arterio sclerosis or Bright's disease, or by the concurrence and co-operation of said diseases with said accident. The appellee, by supplemental petition, averred that appellants claimed that on October 15, 1913, they effected a settlement with Edward MacKechnie for all liability present and future upon the insurance policy sued on, and, at all times since that date, have asserted and maintained that they were no longer liable upon said policy, hence appellee was relieved and absolved from the necessity of making proof to appellants of the accident and its resultant injuries to Edward MacKechnie, and could bring suit instantly upon such denial of liability. Appellee further averred that the assured, Edward MacKechnie, was mentally incapacitated to execute the release asserted by appellants at the time it was executed and not bound thereby.

The case was submitted to a jury upon special issues, and upon their findings judgment was rendered in favor of the appellee for the sum of $6,345.25, and motion for a new trial being overruled, the appellants appealed.

Appellee objects to a consideration of the appellants' assignments of error. The principal objections urged are, that the assignments are not supported in the brief by any statement or reference to the record showing that the points urged were embraced in a motion for a new trial, nor by any sufficient statement showing that the action complained of was taken by the court below and exceptions duly taken and reserved by bills of exception. The rules relating to the matters of practice referred to have at least been substantially complied with, and a refusal to consider the assignments of error would not be justified. There was a motion for a new trial filed in the court below, and grounds assigned in the motion constitute the assignments of error urged in this court. It thus appears that the points urged in this court were embraced in a motion for a new trial in the court below. And where the bills of exception relied on here are not copied in the brief, they are referred to, and the page of the transcript where they may be found is given. The objections are overruled.

The record discloses that the appellants issued to Edward MacKechnie an accident insurance policy, such as is alleged in appellee's petition, and that said policy was in force on the 25th day of September, 1913; that on that day the said Edward MacKechnie, while attempting to catch a moving street car, with the view of boarding it, fell and accidentally broke one of his arms and bruised his forehead; that on the 15th day of October, 1913, 20 days from the date of the accident, the said MacKechnie, in consideration of the sum of $142.15, paid to him by appellants, released them, in writing, from all claims under the policy issued to him, "on account of and in full compromise settlement for injuries accidentally sustained on or about September 25, 1913," and appellants' first contention is that the trial court erred in refusing to charge the jury as follows:

"You are instructed that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence that Edward MacKechnie was mentally incapacitated at the very time he executed the release in evidence to know that he had done so, and the plaintiff having wholly failed to offer any testimony whatever tending to establish this fact, it therefore follows as a matter of law that said release cannot be set aside and you are instructed to return a verdict for the defendants as follows: `We, the jury, find for the defendants.'"

The testimony bearing upon the issue is very fully set out in appellants' brief, but it is too voluminous to be stated or quoted in this opinion. We have carefully read and considered all of it, and as the case, in our opinion, must be reversed and cause remanded for a new trial...