*1 297 payment recovery be reasonable invoice of the relative branner 10% stipulated fee, attorney’s had had further Ashabranner indicated allowed, fee, attorney’s if should if in the and asked delay some draw been ($1500.00) Fifteen Hundred not exceed $20,000.00 payment at that time would DOLLARS. Caplan agreed. satisfactory, to which be 1964, by day February, the 10th On rehearing for is granted motion The 2435, paid Builders No. South Texas Check is mod- part judgment of this Court and the $9,009.00 $20,000.00, leaving the un- sum of attorney’s by reducing amount of ified 1964, paid. February 24, Ideal sub- On Hundred fee to said of Fifteen allowed sum amount of mitted Invoice No. 7055 in the ($1500.00) DOLLARS. 10, 1964, April Ideal submitted On $582.30. particulars for other the motion $7,- all Invoice amount of No. 7119 rehearing is 628.50, denied. being the of the con- same balance price. tract The statement of invoices
payments as job on the attached hereto
Exhibit D.” thirty days
This suit was filed more than
after last invoice was received stipulated contractor. It was that none of AND ACCIDENT IN- NATIONAL LIFE $17,219.80 claimed to be due under the COMPANY, Appellant, SURANCE paid appellee. contract has been It was v. stipulated appellee also that if is entitled to MORRIS, Appellee. Woodie Mae suit, attorney’s recover fees in this a sum No. 11388. equal recovery of the amount of 10% figure. be a fair reasonable Appeals of Texas. of Civil Court Austin. stipulated ap Under these facts it April 20, pears appellee complied has with the 1966. V.A.T.S., requirements is, 2226, of Art. 4, Rehearing May 1966. Denied therefore, $1,810.41 entitled to recover attorney’s Langdeau reasonable fees. v.
Bouknight, 435; 42, 162 Tex. 344 S.W.2d
Wyche Co., Engineering v. Wichita Tex.
Civ.App., 728; 374 S.W.2d Ginther v. Co.,
Southwest Tex.Civ.App., Workover 291; Brown,
286 S.W.2d Ferrier Bros. v.
Tex.Civ.App., 181, ref., 362 S.W.2d writ appellee may
n. r. e. cross-assign An bring against appellant
ments per an without
fecting independent appeal. an Dallas Co., 1945, Supply
Electric Co. v. Branum 366, 427;
143 Tex. Bowman S.W.2d v.
Puckett, 1945, 144 Tex. 188 S.W.2d
571. judgment trial court mod-
ified is affirmed. Rehearing
On for Motion
Appellant pointed has out Court parties stipulated
that while
298
Blanks, Lewis, Thigpin, Logan, Steib & Steib, Curtis Angelo, appellant. F. for San Wilson, Logan, Massey, Lear & Tom C. Massey, Angelo, appellee. for San ARCHER, Chief Justice. appeal judgment
This is an from the Court, findings the District based on of a jury, appellee for favor of for $2250.00 benefits from accidental death of due insured, penal- statutory the named $270.00 ty principal amount and 12% attorney’s fee, interest at the with $800.00 rate of and costs. 6% upon was written policy life of plaintiff L. Dow husband of Wood- ie Mae for policy provided Morris. The payment of a face amount of with $750.00 exclusions, no suicide and which been paid prior this suit. controversy in this case centers payment
around the of additional benefits equal to three times amount of the the face policy if death resulted of the deceased directly and all other independently caus- bodily injuries solely es from effected external, through violent accidental triple indemnity means. These accidental payments subject suicide exclusion. to a jury spe- The case was submitted to cial issues death of the who found that the independent- directly deceased resulted ly bodily injuries of all other causes from external, solely through effected violent and means, accidental and that the death was solely by cyanide poisoning, not caused external, and ac- violent solely poisoning did contribute not cidental means.” the death. give does pleading position cause of Appellant’s believe We cause by competent evi- fair notice as death defendant a established Morris. death Mr. dence. *3 and the accident knew of The defendant appeal is based seventeen on day following the the death Morris on of
points may di but be consolidated into two been body had not at a time when the and to visions. The first division is directed agent casket, placed defendant’s in and the sufficiency plaintiff’s pleadings the of the up policy. already picked the had give the cause of the to fair notice as to ruling that the death of Mr. Morris. The trial court’s not be dis pleadings sufficient will were Paragraph pleadings the is as five of large abuse. showing a of turbed absent follows: in trial lodged the measure of discretion is 27, Shortly “5. after noon on October exceptions the in on passing court the 1963, pas- L. Dow riding Morris was v. pleadings. Southern Underwriters proceeding in an senger automobile east Tex.Civ.App., er. Hodges, 141 S.W.2d City Beauregard on in of San Avenue the ref. Angelo. At the intersection of Beaure- may Appellant’s points be con- remaining gard Street, and the Morris auto- Oakes disposed and sidered another division traveling mobile was struck a truck together, points all are directed since the on grind- North Oakes In the Street. sup- sufficiency of the evidence to ing accidental the truck collision between port findings the admis- jury, the of the and and the automobile in which L. Dow Mor- testimony Mar- sion of Dr. Robert the ris riding, was L. Dow Morris was tinez that accident was the cause of about thrown the interior of the automo- Morris, ob- death Mr. over defendant’s bile, striking head, and other chest jection did not have ade- that the witness parts objects of his on the hard quate an ei- factual basis to form automobile, causing L. Morris Dow ther and knowl- from actual observation physical spe- suffer injuries, certain edge hypothetical questions based from cifically brain, mul- a concussion of the upon other record. evidence in the lacerations, tiple bruises, contusions and bones, damaging injuring and mus- Martinez, part, The testimony of Dr. in cles, tendons, nerves, ligaments, ves- blood is: head, sels and soft tissues of his neck Did a call that date to receive chest, severally all and of which or in Emergency Room? proximately directly concurrence Yes, S> sir, I did. death, his resulting caused death which ¡O did Whom administer to at emergency occurred room of the Emergency Hospital p. day.” Room of Shannon? Shannon at 1:45 m. that Dow Mr. Morris. Paragraph six as follows: only Mr. Dow he Morris. Was Plaintiff show “6. would further one? Paragraph described Five No, > (5) directly proximately above sir. two There were others. causes, independently of all other ¡O And administered to them too? L. the death of which death Dow Yes, > sir. bodily injuries resulted from the effect- Was one of them Mrs. Morris? © solely through ed collision the accidental ¡> before, described and which death was Yes, sir. Q Now, in, what we are interested neck, Did he have cuts over his Ol Martinez, is the condition'of Mr. his throat? Dow Morris at the time saw him sir, Yes, on the sides. Emergency Room. sides On the of the throat? Ias walked into the Emer- Yes,
gency very strong Room there sir. was cyanide. odor of The nurse told me midportion Was the of his face cyanide poison; he taken bruised or lacerated? up and I walked him and I was c The what? surprised to see him alive because strong cyanide; odor of midportion face, Doctor, of his pulse breathing, he had a was it— *4 thready, which was and had no I don’t just recall. I recall pressure. immediately I blood So bruise on his forehead. bring started intravenous fluids to pressure up; his blood how- back Bruise on his and forehead lacera- JO ever, expired he five about minutes tions, you it, I believe called about after we started the fluids him. his face and ? his throat attempted I external cardiac mas- Yes, > sir. minutes, sage for a and did few help, finally pronounced and him Both sides of his neck? lO dead. Yes, sir. > Q say expired minutes, You he five upon Were called at that O about five minutes after started assign a cause of death? the intravenous fluids? > sir, Yes, I was. Yes, A sir. ijs n n n n ¾? And did assign a cause of ©
Q about appearance, What his death ? ? Martinez c Yes, sir; put I down that it was quite A Well, pale he was all the time cyanide probably poisoning. there, expired was when he I and very pale. he He had several was Probably cyanide poisoning? iO superficial his lacerations about face Yes, > sir. a bruise his had over forehead.
Q forehead, part What sir? you changed your Have mind since © then? A Over the— Yes, > sir. Q your with show hand. Just your change What is the basis for A More or less over middle and © mind, Dr. Martinez ? right (indicating). side inquired after I further into Q A bruise? cyanide poisoning, I read several Yes, A sir. subject, they textbooks on the cyanide people all said that took who Q pronounced or this rather Was usually cya- in a lethal dose died just slight bruise? nosis, they usually died within Oh, A it wasn’t a severe bruise. it; took few seconds after * * * * * * quite pale and he was and he lived his blow a blunt from died He well, Q at he lived at know least — say makes what Now forehead. twenty least minutes. that? Now, term, Q Dr. Marti- you used had on bruise Because nez, ‘cyanosis.’ you explain A Would forehead. jury that means ? to me what Cyanosis A color means a bluish Can him? you examine Did Q skin, oxygen. due lack of fractured? his skull was whether say No, sir. A Q How does this come about? now whether he you say Can Well, cyanosis
A interferes with the damage? any brain oxygen body passage tis- into *5 Q Now, is tissues, acts in the blood? cyanide poisoning will have this blu- sues —I mean Is this true Yes, get person dying passage oxygen they sir. since the how generally oxygen of a lethal dose of turn blue. cyanide poison interferes with into the the case that tissues don’t body re- A Q Dr. A Q Could [*] Dow Morris was Yes, Yes, No, sir. in shock? accident [*] Martinez, you testified sir. sir. this have been ? [*] [*] shock, obviously [*] by the [*] L. by ish the accident? Very likely color? caused Q Yes, A sir. Yes, A sir.
Q A Yes, Or to sir. put technically be cyanotic? Q sjs cyanide poisoning case? At that n time n you [*] never had n n [*] n [*] n n A No, sir. Q think, then, You having that after Q your This one? was first long, you just stated, lived that what Yes,
you A sir. very think the chances are little that he poisoning died of if absolutely you Q And did what long? he lived that patient’s be to the best considered to interests ? Yes, A sir. Yes, A sir.
Q your opinion, from what re- Emergency call of the Room L. involved, Q And with the date, Dow Morris on that October minutes, testified while five that he had received sufficient in- got ago, from the time juries he evidenced sufficient —that expired, until time he injuries to his death? have caused thing, you treat do same way him the ? same Yes, A sir.” Yes, A sir. carefully Dr. Martinez was and exten- sively examined on as to cross-examination shock, Q pri- This is because of his death, that: cause and testified marily ? Yes,
“A From a his forehead. sir. blunt blow to your opinion And it is that his post death part car, in the front at the was not by cyanide caused poison- window, and that he followed the car and ing? saw the wreck occur. Yes, sir. No given details are as to the wreck or your And it is that his death except of others Morris Mrs. was driv- was by injury ing received one car and Mr. Morris in the was car. in the collision he was in ? Mrs. Morris received extensive hospitalized. Yes,
A. sir.” As concerns the collision Edgar Lee picture We insert herein a of the car White testified he saw a car run a light red by driven Mrs. taken after the col- lady driven fast, traveling lision, rather and from its demolished condition the saw car sitting a man leaning on the impact great. must have been very *6 Willbern, daughter Mrs. Linda and so I bent forward and could a of the I face, deceased, body his see the other side of it was testified that she viewed the cut, all home, and cut down of her father at the funeral and saw: also bruised neck; hands and then his into had, right “A side of on the only things that were vis- were the eye it looked his head and over his that and were ible other than pro- long gash, like a brow was the very both bruised.” truded, and discolored was blue deceased, tes- cheek, a of the then I noticed L. D. son around his and up, accident heard of the on gash a hadn’t been covered tified that he Doctor, folks; circumstances, Q these and left to for his Under radio look experience it opinion is your home the and father at the funeral in he saw his face, say that the day, possible anybody one for to and on his next saw bruises facts, accident, badly and a cut based on these eye, his nose was swollen and exclusive cause of of his the sole across the front neck. person’s death? physician, Hershberger, a Lloyd Dr. R. pathology, deals specializing in which with say can that for this You No. disease, changes that and the of causes got these other reason: We have disease, testi- because of occur to things mentioned have lethal, the most fied that was one of forth, me, I have and so odor, swallowed, in- deadly poisons can be them, I be include so would not lining, in the stomach haled and absorbed say is the able to that the accident re- body by paralysis a on the affects the of sole cause death.” center, oxygen, spiratory body lacks and the spe- Trotter, physician, Raleigh Dr. F. limp uncon- person becomes cializing pathology, answer testified sciousness follows. hypothetical question: question hypothetical to a answer Hershberger
assuming Dr. certain facts I “Q From the have de- situation testified: you, you say scribed to with any certainty degree of whether
“Q your opinion, Doctor? What is ingested or poison odor came from odor, Now, on based on based poison spilled upon his shirt? color, pulse and based respiration, on the lack and based A I couldn’t it came from state whether bleeding, I have to con- clothing, no. ingestion from his cyanide my first choice. sider Trotter, lapse regard with Now, Doctor, from these facts as ingestion poison, time after I given you, have them to would it ingestion cyanide poison, possible express be for an lapse ingestion time between opinion medically that is fairly ac- death, customary what is the accident, curate about the without lapse of ? Is there such knowing any than more have lapse thing customary of time here, possible told for taking between in a lethal dose and to express an within med- death ? *7 degree certainty ical whether or Cy- customary is no There time. not this accident have the could been many has known for death, anide been cause of the of these basis rapid, years to be of the most particular one facts? minutes, varying just from a few facts, on the Based mentioned cases, longer and the times are rare bruise, patient a so that the was still reported up have been to three accident, the living at the hours, longer but the ones are rare.” living so I know that he was still time; you have men- at that but all testimony believe that the We of Dr. superficial tioned to me lacera- was properly Martinez was admitted because he concerned, injury as far as is tions upon opinion examination, based his his ob justified not be on those two would and facts servations he had been told exist findings to consider that was ed. due to automobile acci- death the dent. sup believe testimony We that the n n n n n n ports jury’s that the finding death of 304
the insured directly independ- Morris, resulted death of Mr. not contributed to ently of all bodily other injury any cause, causes from other preexisting within effected solely through external, frailty violent and body. of the human enfeeblement accidental means. judgment of the trial court af- The is jury could draw all reasonable in- firmed. ferences from facts th'e before it and on Affirmed. evidence, could, did, as it reason- ably conclude that the insured sustained in HUGHES, (concurring). Justice collision of such a nature as to have caused his death. is There evidence in this record Mr. that containing Morris drank from bottle We do not findings believe liquid cyanide. like which smelled There jury are contrary to the overwhelming quantity liquid no evidence of the of the weight of the record, evidence but ingested. jury such findings supported reasonably by the evidence. Dr. Martinez testified that cyanide poison- Mr. Morris did not die of We have herein out set the evidence and ing but he died from a blunt blow there is no need to restate such. Millers’ length on the head. The of time which Indemnity Underwriters v. Schrieber et drinking Mr. Morris from the lived after al., Tex.Civ.App., 963, ref.; 240 S.W. er. cyanosis (bluish or bottle and the lack of Fry v. Dixie Corporation, Motor Coach 142 coloring skin) reddish 589, 135; Tex. 180 S.W.2d National Life Martinez the conclusion that to reach and Accident Company Insurance Brog v. poisoning. Dr. Mr. Morris did die of don, Tex.Civ.App., 403, 322 S.W.2d n. w. h. poisoning con- Martinez testified might tributed to his death “because We, reviewing Court, as a must and have weakened his condition.” do view the support evidence in judgment. patholo- Trotter, recognized Dr. R. F. hypothet- gist answering Angelo, San
Appellant cites a number of cases such as proved, as to question embracing facts ical Gipson Company, v. Aetna Insurance Tex. Mr. testi- the cause of death of Civ.App., 311, 373 S.W.2d n. w. h. cy- suspicion have to be fied: “A presumption against of law Hav- of the odor. poisoning anide because supports finding suicide on, premise of accidental ing very go little to otherwise; death. Great Southern Life Ins. proven Co. v. have to be that until Watson, Tex.Civ.App., cyanosis S.W.2d er. I could however, in the absence ref., n. cyanide.” r. e. from not state that the death reply appellant its brief cites Mutual ais Dr. Trotter testified Benefit Health Accident Association & v. He also tes- rapid poisoning. very acting Hudman, 110, Sup.Ct., being 398 S.W.2d tified : appeal. determinative of this “Q Now, you ago, stated a few moments *8 Trotter,
A may cyanosis distinction made in the Dr. be instant that the is an important case and the Hudman case because the factor in this of matter cyanide poisoning. important Hudman case the evidence showed that How factor, is preexisting heart disease and the time sir ? serious over- exertion cause the fibrillation concurred to any respiratory distress, A In long- the and in turn his death. insured’s heart goes on er that it the more intense you might cyanosis reliance In the there is sole consider the to instant case causing the be. on the accidental is Q Doctor, patient a assuming Do mean that that that Q expect Emer- person would brought more the Shannon to be into cyanotic no blood twenty he either after Room gency minutes with pres- ingested poison, blood assuming is still low pressure he or rather alive, pulse cyanotic thready to be more sure, weak, than then awith examining he eighty, was ten the approximately minutes minutes or five after he poison took the know whether physician ? does contracted; pupils or are dilated the A Correct. does not physician examining are, Q Now, cyanosis patient’s does this reflexes Does what the fade? know reflexes, the normal and so any color does return or he has whether replace forth; physician another color at cyanotic examining this color, generally speaking? point know whether does not that his arms or patient raise can cyanosis observed down; flop just the arms whether only it person clear up if the finds su- physician examining recovered and oxygenation became lacerations; assuming and perficial again. normal or If the mucosa finds physician examining that the internally person was examined of a half a bruise about the size appearance, it had a reddish the forehead portion dollar on a up may didn’t clear brow; that the further assume appear- become more brownish in pa- finds the examining physician ance. irregular; breathing tient slow patient is admitted that assume Q right. So, All you saying, Doc- approxi- at emergency room tor, person that if a for as lived m., that mately p. 1:25 and assume long as 45 minutes or an hour after m.; p. 1:45 patient expires about poison cy- he took got over is a his- there further that assume expect anosis that him to accident, and an tory of automobile poi- recover from the effects of the history and a smell is also son? almond, there is a that of burnt par- this history suspicion cyanosis that A. If clearned I would some, patient cyanide expected drank oxyge- have ticular him to start oh, say 40 minutes let’s nating, that, if some it want call yes, prior to that time. again; put I it would have to way.” all the in- Assuming that this is has. physician formation that appellant, On cross examination by facts, if Now, this from this set of Trotter testified as follows: available, from this is is all Now, Doctor, “Q testimony your is it facts, medically, scientif- is it set cyanosis indispensable is ele- an physician possible ically for the in the diagnosis ment that the express opinion a medical poisoning, in all cases? was the sole accident automobile person’s death? cause Sir, exceptions always there are be. A It could medicine. facts, say, I with further no your ‘no,’ gather answer is express physician to possible for the indispensable an it is not element acci- an that the automobile in all cases? pa- is the cause of the dent sole *9 exceptions. A I am sure there will be tient’s death? 306
A I certainly agree with the was the sole cause of death unless the counsellor that that very is not many by poisoning statement Dr. Martinez that go facts to However, on. “might have weakened his condition” and two factors upon there based precludes, hence contributed to his death as time on which he law, could make that a matter finding. of such statement, which, one of the lack of Hudman, Appellant upon strongly relies cyanosis, and one of which is the by Court, position cited sustain its to rapid pulse. Martinez, testimony that in this of Dr. law, right. respect, All Now, necessarily, let and as a matter of me ask this: by Under those established that facts can received rule out completely Mr. cyanide that Morris the automobile accident were has no contributing not the sole I not cause to cause of his death. do the death? so consider Hudman. I believe that perfectly To be honest could not Morris, “weakened” condition of Mr. due rule out that it did not have a con- was, factually ingestion cyanide, tributing effect. least, only “preexisting at condition or words, other know, just don’t following language disorder” within the right, isn’t that Doctor? opinion: A In the post absence of a mortem every preexisting “We do not hold that examination say would have to frailty or enfeeblement of the human we do exactly. not know is There an accidental which coexists with a reasonable doubt. injury recovery such will defeat under policies as Hudman’s. To do so would Q Well, there pretty is a big element of recovery be- defeat in most instances doubt, just of, what the man died cause mere all flesh senescence makes isn’t there Doctor? infirmity heir to and weakness. Policies Yes, there is a reasonable doubt. are, phrase, issued to to use Cordozo’s Q As far as goes, Apollo could have or those who are neither ‘an
died attack, of a heart with these Metropolitan Hercules.’ Silverstein v. facts ? Co., 81, 254 171 N.E. Life Ins. N.Y. Recovery not defeated (1930). 914 is A Correct. preexisting when a condition or disorder Q He could have died from any num- causation, is in the scale of so remote ber things ? insubstantial, tem- so dormant and so porary and transient it does A He could have.” materially the death or contribute to evidence, my opinion, Co., heavily injury. Howe v. Life Ins. National preponderates 425, 283, conclusion that Mr. A.L.R. 321 Mass. N.E.2d 170 72 Morris did cyanide not die poisoning. cases, (1947). the com- 1254 In most only contrary supplied persons by petent qualified evidence evidence of Lloyd Hershberger, who, R. or in- separates answer- the real causes of death ing hypothetical question containing the at least jury from mere conditions or proved facts, basic by testified that as determination raises issues for the cause of death of Am.Jur., Mr. “I would the fact finder. 29A Insur- have to 1211-1213; consider my ance, first 82 A.L.R.2d §§ choice.” 623; 806-808; A.L.R. 56 A.L.R.2d 266-269; Law Appleman, Insurance 1A jury Since the could rule poisoning out Practice, 403, p. & 88.” § could, the cause of death it under testimony Martinez, of Dr. find it was the evidence believe that under say death of jury Mr. Morris was caused province a blow within the Mr. head. It could also find that this condition whether the weakened *10 ingestion Morris due to the of an undeter- cyanide “materially
mined amount of con-
tributed” to his death.
I concur opinion. in the Court’s ux., Appellants,
James CARROLL et T.
v. LACY, INC., al., Appellees.
ROGER et
No. 195. Appeals of Civil
Court of Texas.
Tyler.
March 1966.
Rehearing April 28, Denied 1966.