15 S.W.2d 704 | Tex. App. | 1929
The appellant, Bankers' Health Accident Company of America, insured William H. Shadden in the sum of $1,000 against loss resulting "directly, independently and exclusively from bodily injuries, solely through mechanical, external, violent and accidental means, except suicide, etc." His wife, Annie Shadden, was the beneficiary in the policy, the plaintiff below and appellee here. A purported settlement was made with her, whereby she received $100 and $5 unearned premium, and in consideration thereof she executed a release of the claim in full. In this suit credit upon the face of the policy was allowed for the sum so received, and she sues for the balance, amounting to $900. The defendant answered by general denial, and set up this settlement which she sought to avoid upon the ground *705 that it was effected by fraud, and that, in any event the settlement was the result of a mutual mistake upon the part of herself and the company.
At the conclusion of the trial the defendant requested an instructed verdict in its behalf. This was refused by the court, who, at the same time, instructed a verdict in favor of the plaintiff, and this appeal follows.
The deceased, William H. Shadden, was a man approximately 50 years of age, in good health, a United States mail carrier by occupation, and had been so employed for a considerable time prior to his death. He distributed the mail along his route by means of a Ford car. On the morning of January 25, 1926, a cold and disagreeable morning, be was unable to start his car by means of the self-starter, which failed to function, and he undertook to crank the same in a manner usual and necessary in the starting of the car under such circumstances. It seems to have required a very disagreeable effort to start the vehicle on this occasion, and something like an hour was consumed in the effort to do so. The ear had failed to function in somewhat the same manner on the preceding Saturday morning. However on the morning of the 25th, the car was finally started, but in accomplishing this the said Shadden appears to have sustained injuries resulting in his death. According to the doctor's testimony the death resulted from dilation of the heart, due to exertion and strain in the cranking of the car.
In the deceased's effort to start the car and immediately thereafter he became greatly worried, his face flushed and red, and he hemorrhaged at the nose and mouth. He left home without eating his breakfast and soon started on his route to deliver mail. While en route he was approached by a friend who testified: "He looked pale and I said `Mr. Shadden, there is something bad the matter with you,' and he said `I cranked my old Ford for about an hour before I left and it seems like I tore something loose inside me.'"
Those who came in contact with him at once detected his abnormal condition and they endeavored to revive him by walking him about the road, after which he was taken to the home of a friend and a physician summoned. An effort was made at once to remove him to his home, but he died on the way.
The cranking of the car was evidently the means by which the deceased's injuries were sustained. In the cranking of the Ford car, an act, not unusual nor ordinarily deadly in its effect, something unforeseen, unexpected, and unusual occurred, which produced the injury resulting in the death of the deceased, and it is our conclusion that his death under the circumstances, resulted through mechanical, external, violent, and accidental means, according to the terms of the policy sued on. Such conclusion is based upon the following authorities: Bryant v. Continental Casualty Co.,
Aside from the facts detailed, we are justified in regarding the record as establishing the foregoing conclusion, for the reason that the appellant presents no propositions complaining of the failure of the court to submit an issue inquiring whether or not the deceased Shadden in fact cranked the car a alleged, or whether, in fact, dilation of the heart resulted from such act. Therefore, we may conclude that the undisputed evidence discloses that Shadden's death was brought about by heart dilation, cause by over exertion in cranking the Ford car as alleged, and as abundantly supported by the evidence de tailed. Further, the appellant does not challenge the sufficiency of the evidence to establish said conclusion or to raise an issuable fact with reference thereto, but merely contends that such fact does not establish the death solely by mechanical, external, violent and accidental means. Therefore, with the foregoing facts established and under the record apparently conceded, we pass to the consideration of the controlling question involved in the action of the court in peremptorily instructing a verdict in favor of the plaintiff.
We are not unmindful of the sacredness of jury trials and the rights of litigants to have questions of fact submitted to the jury for its determination. We are also aware that, in determining whether or not there were issues to be submitted to the jury, it is our duty to disregard the testimony of the appellee and look solely to that relied on by the appellant. If it in truth raised an issuable fact, that should have been passed to the jury, and, under such circumstances, it would be our duty to reverse the judgment and return the cause for another trial.
In this case the policy evidenced a liquidated claim in the sum of $1,000. The beneficiary appears to have adjusted the claim for the sum of $100 and the return of the unearned portion of the premium. A receipt in full evidencing such settlement was executed by her and this settlement and such executed release were pleaded by the defendant as a bar to her right to recover the balance on the policy. The release and settlement were sought to be avoided on the grounds of fraud and mutual mistake.
The appellant's chief contention is that its agent was in good faith in effecting the settlement and honestly believed there was no liability under the terms of the policy *706
accruing from the death of William H. Shadden, and, since the settlement had been effected by such agent, who held a bona fide belief that no liability existed, or in any event liability was doubtful, such settlement in pursuance thereof should be upheld, and that the court erred in refusing to submit to the jury the issue as to whether defendant's agent urged said defense in good faith. Franklin Life Insurance Co. v. Villeneuve,
The crowning argument or logic by which Mrs. Shadden was induced to execute the release and settle for a mere pittance of the amount called for by the policy may best be expressed in the language of said adjuster: "I have had twenty-six years experience in this line of business. * * * I says, `Mrs. Shadden, if you don't make a settlement with me, I am not very hard and I do the best I can and try to be as near right as I can, but If you don't make a settlement with we you are going to have to fight with my company and they are not going to pay you a dime, and if you go to an attorney with this, your attorney won't get enough of it to pay their fee.' * * * I also did pass the remark, `there is another thing with these insurance companies, that where there is any doubt about an accident they remove the body from the grave and have it examined.' I said `there is no liability in this case, and another thing, there is no external marks on the body.'"
Under the indicated circumstances it is not surprising that this adjuster was able to testify further: "I told her down there I had found out the conditions and this policy didn't cover it, she came to the same conclusions after hearing my statements to her and we both acted on that and that was the reason I got the policy and paid the money."
In this case appellant makes some contention that fraud cannot be predicated upon mere expressions of opinion, or for a misrepresentation as to the matter of law equally open to the inquiry of both parties. It is the general rule that ignorance of the law excuses no one, but our Supreme Court, through Justice Wheeler, in Moreland v. Atchison,
"The general rule, it has been truly said, is justified by considerations of public policy; and yet so harsh a rule, founded upon a presumption so arbitrary, ought to be modified in its application, by every exception which can be admitted without defeating its policy. * * *
"Admitting the rule that ignorance of the law, with a knowledge of the facts, cannot generally be set up as a defense, * * * there are other elements in the present case, which bring it within the exceptions, or take it out of the operation of the rule, and entitle the party to relief. It is not a case of mere ignorance of law, unmixed with fraud and ignorance of fact. There was both fraud and Ignorance of fact, as well as law. And it has been the constant practice of Courts of Chancery to grant relief, where the case did not depend upon a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, or advantage taken of another's situation. * * * There was, in this case, misrepresentation and fraud, if corruptly deceiving one, as to matter of law, amounts to fraud in a legal sense; and we do not doubt that it may, where, as in this case, advantage is taken of the ignorance of the party."
The facts of the case quoted from are not identical with those under consideration, but the doctrine announced is a wholesome one and applicable to the case in hand. In the instant case the lines of demarkation between misrepresentation of fact, misrepresentations in matter of law, and loose expressions of mere opinions are not distinct, but in these respects and other matters relative thereto the adjuster exhibited a recklessness of speech wholly inconsistent with the plea of good faith and fair dealing. And, aside from Mrs. Shadden's evident ignorance of the law governing her rights in the premises, it may truthfully he observed that this record, too, reveals a strange admixture of other ingredients going to establish misrepresentation, imposition, undue confidence, undue influence, and advantage taken of her situation all of which conclusively appears from the *707
appellant's testimony, and establishes the fact that she executed the release in question under a misapprehension of her rights, as alleged in her petition. Under such circumstances the release will not be upheld, as may be seen from the following authorities: Moreland v. Atchison, supra; Ramey v. Allison,
Further, in the case at bar, we have evidently concluded that there is no evidence upon which a jury could predicate a verdict in favor of the appellant. As stated in Baulee v. Ry. Co.,
Therefore, if it could be said that the record before us contains "some evidence" in a sense supporting the appellant's contentions of good faith, on the part of its agent in urging nonliability on the policy, and "some evidence" in a sense refuting the charge of fraud, yet such protestations of good faith and innocence from such charges are so irreconcilable with his testimony as a whole, and, in view of his long experience and undoubted knowledge in the business and the frankly admitted oppressive methods used in effecting the settlement, it is believed that the trial court was justified under the rule announced by Judge Denman in Joske v. Irvine,
This meets the requirements of the situation before us, since we are of the opinion that the probative force of the appellant's testimony does not raise, if anything, more than a mere surmise or suspicion of the existence of good faith upon his part in effecting the settlement with Mrs. Shadden, and its testimony is no stronger when sought to be used to refute the charges of fraud hurled against it.
Under the facts of this case we do not believe that reasonable minds would reach a different conclusion, and under the following authorities and those cited the instructed verdict must be approved: Wills v. Central, etc., Co.,
This opinion has discussed the points presented by each of the six propositions urged by appellant. Believing them to be without merit, we do, for the reasons assigned, overrule them, and the judgment of the trial court is affirmed. It is so ordered.