*1 883 GUILLORY, Appellant, Lee Ruthie

v. LIFE INSURANCE

AETNA

COMPANY, Appellee.

No. 7858. Texas, Appeals of of Civil Court Beaumont, Jamail, for George Michael Beaumont. appellant. 23, Sept. 1976. Evans, Beau- Dowell, N. Richard Dale 21, Rehearing 1976. Denied Oct. mont, appellee. for

DIES, Justice. Chief Guillory Lee appellant Ruthie 1968 In Guillory, in the lat- living Oren began with They had two in Beaumont. home ter’s 1974, beating by after a In March children. a rent Oren, Guillory moved to Ruthie Lee It was part city. the in of house another night in this section. dangerous go to at out 28, 1974, 2 a. m. and 3 a. between June On Guillory a on the Lee heard noise Ruthie m. being door and saw the back porch back by a few hours had been opened. Oren then, through they talked the but before challenged in- says she the window. She getting no answer she fired a and truder times an several at him. He had revolver shots, his above head. After the raised arm Guillory off. Ruthie Lee ran to a he backed telling phone neighbor’s police, house to the thought she she had shot them an intruder. they they arrived found Guillo- When Oren Guillory’s Lee abode. ry near Ruthie dead stick) (like a police found a stick broom The (the They police) testified body. near the the Guillory told them she knew Lee Ruthie Guillory she shot before was Oren intruder their said he had come for that he had and children. two policy a with Aetna Guillory had Oren Company, appellee, which Life Insurance Guillory beneficiary. as Ruthie Lee named provided: policy The non-oecupa- employee a suffers “If an bodily injury by accident caused an tional and, injury of as a direct result such and causes, sus- exclusion of all other the to ” etc. . . . tains. *2 884 Hence, Guillory

Ruthie Lee sued Aetna under the contend “Hutcherson” test his ing Oren’s death was In accidental. a trial judgment death was not accidental. The of jury findings to a she received favorable the trial court is affirmed. after which the granted judg trial court AFFIRMED. Aetna,

ment non obstante veredicto for from perfects which Ruthie Guillory this STEPHENSON, J., not participating. appeal.* KEITH, (concurring). Justice judgment For a non obstante vere- join I the in affirmation of the judgment upheld, to dicto be it appear must that of the trial court. probative there is no evidence of in force support jury of the finding which is disre

garded. Bennett v. Heath Furniture Com 390

pany, S.W.2d 505 (Tex.Civ.App . —East 1965, writ);

land no Missouri-Kansas-Texas Shelton, (Tex.Civ.

RR. Co. v. 383 S.W.2d 842 1964,

App. e.); writ ref’d n. r. Shel — Dallas Ector, ton v. 364 S.W.2d 425 (Tex.Civ.App. 1963, writ).

—Dallas no TEXAS STATE BOARD OF PHARMACY recently April 1976, As as the Texas Su al., Appellants, et preme Republic Court in National Life In Company Heyward, Tex., surance v. 536 v. 549, approved .2d S.W the “Hutcherson test” CENTER, INC., GIBSON’S DISCOUNT v. Sovereigh Camp W., W. O. [Hutcherson al., Appellees. et 551, Tex. 112 251 S.W. 491 (1923)] saying, No. 12330. “the test killing of whether the is accidental within the of terms an policy insurance is Texas, of Appeals Court Civil of be viewpoint not to determined from the of Austin. killing, the one who does the but rather 29, Sept. 1976. viewpoint the from of the insured.” Rehearing 20, Denied Oct. 1976.

If his conduct was such he that not have anticipated happened, should what accidental; otherwise,

his death was it was also,

not. Releford See v. Reserve Life Company, 228,

Insurance 154 Tex. 276 (1955); .2d 517 673,

S.W 49 A.L.R.3d 679

(1973) many and the authorities cited. Guillory

Oren knew Ruthie Lee Guil-

lory and living their two children were tough neighborhood.

alone in a he When

attempted way to force his in the back door

of the house at 2 3 morning, or a. m. in the reasonably

he should have anticipated that Guillory

Ruthie Lee might she react as did. * conduct, happening Special jury of such event is an In 1 the not Issue No. the found that Oren Guillory bodily injury by accident.” suffered a an caused accompanying accident. The definition the is- injury Whether an should have been reason- injury only sue was: “An is accidental when it ably anticipated is to be determined from the reasonably anticipated be cannot as the result standpoint injured person of the and no one person injured. of the actions of the jury Converse- The in answer to S.I. 2 answer- else. ed, No. ly, probabili- inquiry when should in all reasonable one “We do not” to the if Ruthie Lee ty voluntary expect Guillory willfully Guillory. events to result from his killed Oren