*1 independent 49 Am. prohibits. facts. As said in There are no 535, p. Jur. Sec. 835: perhaps cases, equity astute in
“In earlier courts of were agreements laying hold of circumstances oral to enforce statute, operation take modern them out of the but approving adjudications opposite tendency indicate the endeavoring carry spirit wisdom of out the the statute and and intention as well as the letter thereof. equity
“The will modem rule is that a court en- before coming operation force an oral contract statute within the frauds, such as an oral contract for the sale of an interest land, protect rights enforce or asserted on the basis contract, an oral there must collateral circumstances suich constituting independent imposing obligation equity, an party protection conscience who seeks to invoke the of the statute.” judgments of the trial court and the judgment should be reversed and rendered that re- spondents nothing. take
Opinion delivered December 1960.
Rehearing overruled December 1960. Company
Pan American Life Insurance Et Al v.
Mrs. Elizabeth Cotton Et Andrews Vir. No. A-7335. Decided November 1960.
Rehearing Overruled December (340 787) Series *2 Vinson, Crane, Elkins, B. all of & Weems Searls Jeff Houston, for Petitioners. affirming judgment Court of erred in against petitioners that the insured because there no evidence consequence as the effected died producing con- violent and accidental means a visible
393 Bryant body. v. Con the exterior of fusion or wound on 673; Co., Radcliffe Casualty 182 S.W. Texas tinental 107 213, error Co., 2d refused S.W. Life Acc. Ins. 298 v. National N.R.E.; & App., Texas Com. Life Ins. v. Aetna Robinson S.W. Crockett, Kennedy, Jr.,
Kennedy Granberry and C. & W. respondents. Quinn response point cite, v. Du- petitioners’ of error pree, 769; Motorists Ins. Texas 2d American S.W. Landes, 715; British Mercantile Ins. Co. v. Fed. 2d North & Arnold, Co. v. writ refused. of the Court. Justice Culver delivered
Mr.
*3
rehearing
granted.
petitioners’
motion for
is
Our
5, 1960,
hereby
in
case
handed down
this
is
with-
October
following
drawn and the
substituted therefor.
guardian
as
Mrs. Elizabeth Cotton Andrews
of minor bene-
ficiary,
Company
sued Pan American Life Insurance
and Con-
Company
indemnity
tinental Assurance
to recover double
provided
death benefits
in
issued
respective companies
Harrington
on the life of
G. Simmons.
having
consolidated,
The suits
been
trial was before the Court
jury
judgment
without the
of a
plain-
aid
and
was rendered for
Appeals
tiff. The
of
Civil
has affirmed.
“On due the death of the Insured oc- consequence bodily in injuries curred of solely through effected external, means, violent and accidental (except of which in the drowning injuries case of internal of autopsy) revealed there is contusion body, visible or wound on the and that such days sixty occurred within after such was sus- tained, thereof, a direct result independently ** * cause, Company will, upon other surrender of the policy, in policy, lieu of all other benefits under this pay to beneficiary policy, or beneficiaries under subject to the change beneficiary clause, DOUBLE THE FACE AMOUNT OF THE POLICY.” provision substantially
The Continental to the same effect as follows: Illinois, Chicago, of due “Upon receipt in at its Home Office bodily in-
proof has resulted that the death Insured directly independently causes of all other juries effected through external, said violent and accidental means policy supplementary con- said and this death occurred while ninety days (90) and from full force tract within causing injuries, pay date of such will the accident designated policy equal to the beneficiary in said sum policy, in addition to the amount otherwise amount of face payable policy. under said supplementary death result-
“This does not cover contract ing from:
“(a) Bodily injuries of contusion which there no visible except body, on the exterior of the in case of drown- * * * or wound ing by autopsy; injuries or internal revealed .” the insured died conclude that there is no evidence that We injuries consequence effected judgments the trial and accidental means. The reversed must and here rendered the Court be petitioners. favor morning Early a fire occurred in the December building had his office. He was observed where insured watching upset. nervous and seemed to On the the fire *4 following fire, day the noticed that he walked with after it was family physician, day limp. on his On the same insured called a Dr. low-grade Dean, him condition. He treated sinus who very emotion that the fire was the with considerable told doctor jam” concerned, that it “in he was had him so far as serious destroyed practically were and it was near his records because Andrews, respondent, year. the Mrs. testified end of the the day of the insured on the afternoon the of fire she saw the favoring right observed that he was his foot. her home. She at thought her that he he been inquiry he told must have hurt On at the rubbing had a headache and was his head and fire. He rubbing aspirin. gave She had never him his him an noticed she inquiry. for that reason made and head before morning following appeared Saturday the fire he to be On glasses upset and and field very borrowed an nervous still effort following Sunday On insured see his office. the made into office, entering top trips his the from an into ad- several building carrying and was observed out wire baskets joining following Monday while papers and files. On that contained his he helping into another office him a desk move someone was complained arm carrying that his dropped and the end he day during leg giving the last trouble and had been him some developed loss of sensation in or two. he some Thereafter A neu- progressively deteriorated. extremities and his condition hospitalized rologist him him on December 22nd examined neurosurgeon January performed on the 4th a a brain 25th. On days operation January the 7th, after insured died some 34 fire. Appeals’ opinion quotes much of the medi-
The Court testimony question Dr. Dean the cal and answer form. was of thing opinion off chain of that “the that set reaction ” ‘psychic produced probably trauma,’ this condition was produced mind, capable that “the fire the reaction in his which is damage producing' only brain, to the tissue not in the cells but organs.” Dorsey other Dr. there awas probability psychic by reasonable trauma suffered a result insured as fire was the cause thrombosis. building The insured was in the at the time of the fire. danger personal it He viewed from safe distance. He inwas Regarding fright. and suffered no the evidence most favorable respondent, to the it must be conceded that the fire act or the viewing the fire was but a remote cause of the insured’s death. brought psychic The the trauma was anticipation about part personal insured that property records of located building being damaged destroyed were natural concern over loss the contents of his office. policies by expressly These their terms exclude from cover-
age bodily injuries those where the external and violent means body produce fail to exert sufficient force so as to out- wardly except visible evidence thereof where that has force otherwise left its mark within the that revealed an autopsy. sight produced If be said that of the fire a ner- vous tension the mind of the insured that tension in turn psychic resulted in trauma that condition was not revealed autopsy autopsy. only presence showed the of a throm- which the probably bosis doctor testified was psy- cause *5 trauma. chic not
We are here concerned with the distinction made in some death, decisions between accidental means and the accidental as discussed in United States Barry, Mutual Accident Ass’n. v.
396 Barry 755, In that case 100, Sup. L. Ed. 60. Ct. 33
131 U. S. from injuries jumping1 recovery received while was allowed for Barry’s Although platform. jumping intentional a part meaning policy. injury was accidental within the 210, cases, Kimball, Respondent Texas Hill v. cites three Ry 59; 618; Gulf, Fe & Co. 7 L.R.A. Colorado Santa 13 S.W. 325; 239, 944; Houston Hayter, L.R.A. v. 93 Texas Dorsett, 2d for 145 Texas 194 S.W. Electric Co. v. fright proposition physical from that where results wrongful another, other mental shock caused act damages injured party his and seeks is entitled to recover apply at all this case. We do not doctrine to facts of agree, however, disagree not rule. We do determining applicable rule in tort law is to be followed in rights parties provisions. have found under contractual We that allows the terms of no case nor have we been cited to one by respondent. these to be construed as contended the fire the fire can be said to be Neither nor the view of “accidental, violent,” external and so far as insured is concerned more than if he had read an account of the fire news- paper a fire and the de- week later or if he had told of the been during city. Surely, his struction of records absence interpretation under a of the contract it could not reasonable said in those the insured had suffered in- be events juries a result and accidental means. decision, Selby,
In a recent American Ins. United Co. v. enforcing Texas a contract of insur 338 S.W. according pointed ance to its terms we out that “contracts of * * * insurance are to be construed as other contracts all together.” parts of the contract are to be taken general recognize the rule that contracts of insurance “We insured, strictly of the construed favor but this does be general the further rule contracts of insurance affect contracts, parts as other and that all construed are to be meaning together, and such are to taken shall be contract be carry given out and effectuate to fullest extent to them will parties.” the intention physical means” connotes “external and violent some
The erm though applied impact to the insured even force or slight.
397 merely signifies that ‘violent,’ provision, in such “The term producing the slight, efficient in physical force, however is a injury.” 754, p. C.J.S., Insurance, section 45 is made: beginning the statement section At the this bodily injury covering policy, death or provision “A through ‘external, violent, and acci- solely by or which results ac- and applies only elements of force means,’ dental where effecting is in injury, unless the clause cident concur “external, violent, means, in disjunctive, accidental” which as or means alone is sufficient. injury case If, however, external and violent to or death can be shown the cause of the means, imports that due or unnatural such be injury to accidental means, is due to violent or death external injury may es- also sufficient to nature and character of the be external means.” tablish it was inflicted violent that briefly of the cases said to bear some We will review us, problem support respondent’s the theory which none of before recovery. Casualty Co., McGlinchey Fidelity Me. 14 In v. Rep. 190, is that Atl. fright 6 Am. there dictum to effect St. produce death is to considered as alone sufficient case violent and accidental means. In that to have the death was said fright trying overexertion and con- been runaway Clearly physical trol horses. case there was deceased, upon the even ac- force exerted if the dictum be but cepted policy as correct in that case the terms of the not persuasive that decision cannot even be here. disclosed Balanced against contrary expression off dictum in is Provident Campbell, App. 452, Life & Accident Ins. v. Tenn. Co. 79 S.W. namely 2d injury that mental shock or disturbance not a (a contemplation of the insurance contract
within us). holding the one In so similar to the Tennes- contract see before disagreed Court discussed dictum in McGlin- chey. Pacific Life Ins. Pierce v. Mut. Wash. court, recovery 322, by policy
Pac. 2d divided under an accident frightened, thinking' was allowed where insured became inevitable, his car and another was re- collision between as a sult of that he which was found suffered cerebral hem- orrhage fright stroke. The held in case that unaccompanied by physical impact mental shock issufficient to purport term of that means” within the “accidental constitute policies in appear policies. It does as used in the question “external, acci- provision, contained provision quoted dental means.” The *7 * * * “Against bodily injuries sustained follows: ** * resulting directly, independently means accidental * * * sup- in decision cites .” The exclusively all causes of other jurisdiction that holding only from tort cases port two of its fright. resulting solely injuries from recovery for that allow suits fright tort cases and in recovery allowed in for Because law, compensation that fact does brought under workmen’s of a contract materially in the construction of or assist control could not have Certainly plaintiff in that case insurance. “bodily injuries of which policy had excluded if the recovered exterior of the on the contusion or wound there is body visible autopsy.” every by injuries revealed and no internal Pierce, supra, ex- except there has been have found case we physical force such as inhalation of insured some erted on needle, sunstroke, exposure drowning, gas, from infection hand, stingi sleeping lamp, periostitis, on the rays heat falling slipping cases, and the like. an insect Co., Life Ins. Texas Civ. Rio National In Hanna v. Grande 908, ref, death was caused an over- 2d wr. App., 181 S.W. operated physical which of course of sulfanilamide dose upon body fully impact of the deceased. We con- force and allowing recovery policy. quo- in that decision cur Insurance cited therein was taken from tation from Vance that, proposition while in instances of death of the a discussion agent drowning, operates in- asphyxiation and poison, from agents, ternally, external means. These the result from any course, contusions or other outward do not leave visible bring physical marks, to bear force do but by autopsy. quoted may Vance is further be revealed “Likewise, ap- term as follows: ‘violent’ Hanna merely injury, plied cause of accidental means that the cause necessary producing a It harmful result. is not is sufficient breaking in the sense of tissues or other- it shall be violent affecting body.” visibly physically and on In- Vance wise surance, Ed., p. authority section Cited Traveler’s Insurance is Paul v. N.Y. statement recovery was allowed for death of insured where N.E. illuminating gas. Clearly caused inhalation Professor recovery implying purely here that can is not had for a Vance application physical reaction without of some Im- mental force. following quoted mediately his statement he elucidates: “* * * straining by injured the insured was Thus where running away, held it was stop that was his horse efforts to although violent, injury external was both the cause rupture a being probably entirely internal, the result was where held that has been And so it near the heart. blood vessel an weight, heavy attempting to lift is received may overexertion, result be attributed kind of other cause.” external Ky. 547, Reigart, v. In American Accident Co. eating piece caused insured’s death was where the choking windpipe accidentally passed into his beefsteak moments, company made the conten- death in a few him to tion that force. The caused an external was not allowing recovery reasoned that death court in though ap- means, the force was and accidental even violent plied internally, saying an accident as if it was as much *8 misapprehension poison that taken under the insured had some recovery unquestionably and that would have was harmless contention allowed in that circumstance. There was no been physical that no force was exerted. Brannum,
The case of International Travelers’ Ass’n. v. light pro problem. In that sheds little on the case the S.W. policy forth visions of the were not set in either other say than to that death there case should be payable $5,000.00. testimony the sum of The was to the effect accidentally striking fell, body that the insured his floor the coming and, bathroom, to burned had fallen and remembered death from the the insured
nothing until he came to himself plaintiff pleaded some time later. The the that shock and excite rupture pleaded ment caused the of the blood vessel and also fell, accidentally body striking the insured the floor causing great rupture days the with the force and death. later Some plaintiff pleaded further that death was the direct result of the excitement and the fall. The both Court of Civil apoplexy by held that the was caused accidental means. The rendered, holding Supreme reversed and that all of hearsay any as to accident was and inadmissible.1 wholly solely by caused The here was a mental probability in all reaction and no different what the deceased if someone had told him would have suffered about fire morning. following only He would still have been disturbed property loss. because 1—212 by the parties as disclosed
Seemingly the intention of recovery could be indemnity that before contract was double certainty that degree some it must determined had be we have here injury, but from an accidental resulted death deceased speculated speculation. It speculation on speculated then it is psychic trauma and a suffered produced a thrombosis. psychic trauma opportunity for autopsy provision is to afford for force physical a establishing caused the fact that death was body manifestation on there was no outward where an accidental recovery for could had force. Otherwise or body poisonous substances by taking caused into the organs to internal injuries sometimes caused for other any contusion physical visible force without or external up newa autopsy to set provision was not or wound. shock, simply as means a category injuries such as mental but physical and determining some result from that death did limiting years similar in all the violent force. The fact language general without in accident has use been by purely injury caused application authoritative contrary against adoption a processes, militates mental interpretation here. and a fatal case at can see no distinction bar between We an insured induced
attack of heart failure suffered watching game program television excitement of football brought prob- worry or domestic in fact about financial throm- is said to lems if that mental disturbance in turn caused the death. *9 bosis which says that she does respondent’s supplemental she brief involving agree petitioners means” that “accidental finding only presumed trial court reaction is the mental overcoming. Presumably petitioners of had the burden which expended by in physical the insured she refers to the exertion office carrying papers and records out of his the baskets that he dropped end of the desk and the occasion when he one Dr. carrying. make statements to was The deceased did some thought had that on the said he he to the effect 16th “he Dean injured during right the or after the fire. He was himself fire building crawling equipment and on the to see his around about no that what he did strenuous. records.” There was evidence by respondent testimony whatever introduced shows that day inception day had and the its on the caused condition following any fire and before there In the the exertion. by testimony Dean that Dr. place, there is medical while second by congenital might could caused severe be thrombosis might exertion, stress and strain been or severe emotional thrombosis, preipitating he nowhere testi- in instrumental probably resulted in opinion exertion thrombosis. fies that in his possibilities on testimony rather than Dr. Dean’s based probative only testimony probabilities. the other On hand fixing psychic probably trauma value the causation was that that resulted in death. set in motion the thrombosis There introduced in two certificates. The were evidence signed the cause first one tumor .On on the date death showed brain
February
signed
18th
corrected death certificate was
Greenwood, stating
by
and filed Dr.
di-
disease
condition
leading
rectly
thrombosis,
pos-
to death was “cerebral
bilateral
terior due to
in
exertion because
fire
office December
trying
burning
occurred from
to save records from
building.
provides
prop
Article
54a
Rule
a death certificate
erly
prima
proof
filed is
facie
of the information therein con
says
tained.
The Court of Civil
death certifi
this
by
petitioners
cate was offered
without
limitation what
they
by
ever and therefore
are bound
its
ex
contents. From an
amination of the statement of facts there seems to be some con
fusion. As we read the record the amended certificate was offered
respondent;
petitioners’
vidence
objection was over
Later,
ruled.
there is a
petitioners
statement
to the effect
they
However,
regard
offered both.
we
immaterial.
probativ
destroyed
positive
value of the
certificate is
testimony of
the doctors
probably
thrombosis was
disturbance,
the mental
testimony
of the doctor who
signed the
certificate. There is
pro
that exertion
duced
thrombosis. The
evidence
exertion rises to no more
Irvin,
than
a scintilla. Joske v.
91 Texas
sured, certificate, autopsy signed recommended the the amended death respondent testified in part behalf of the as fol- lows: “ ‘Q. are, your opinion, possible medical What causes thrombosis, possible Mr. Well, Simmons’ causes? A. there *10 things possible we consider causes. Just the medical
causes.
“ history, ‘Q. upon your examinations, your Based sur- of Mr. possible causes gery, autopsy, what would be the and the it you to divide would have A. I think thrombosis? Simmons’ specific large there groups, it where could be two into you have
cause, congenital, where or it could be where it emotional or severe at the time of the fire exertion like severe precipitating might instrumental have been stress and strain the actual thrombosis. “ ‘Q. arteriosclerosis your opinion, sufficient In was there A. I will Mr. case? the thrombosis in Simmons’ to have cause not, no, ordinarily say sir.
“ ‘Q. Doctor, you what caused Mr. Simmons’ know do No, A. sir. thrombosis? “Q. tests, ex- your you based Do possibly autopsy,
aminations, history, surgery to what as. I answer A. I don’t think can caused the thrombosis? any already If it definitely any I hame. or than more further undergo emo- or extreme he severe exertion can be shown did injury, those then strain or an actual blow tional received things certainly possible factors in the would be considered as thrombosis; that, just can precipitation of his other than we ” say happened.’ speculation uncertainty the in- as to cause forcibly respondent death cannot more described than sured’s concluding summing says: up her she brief. does witness, man, “It other testi- is true that no medical dstrain, and that the fire resultant emotional stress an fied setting up ac- of a new office the removal tually the debris actually cause did cause did the cerebral thrombosis Harrington Simmons, did death of G. when fire not have the any upon anyone true, however, that, It such effect else. background above, the and factual situation outlined fire unexpected unexplained way did have this effect on some injuries consequence as a inflicted acci- him he died dental means.” being the insured suffered
There no evidence injuries result effected vio- means, recovery indemnity lent or accidental double benefits must be denied. judgment judgments of both courts are reversed and nothing. respondent take rendered
here *11 23, Opinion November delivered concurring.
Mr. Justice Smith concluded, day I this the of On 14th November record, petitioners’ mo- after further consideration rehearing granted; judgments tion for of both should be be re- the trial court and the should versed, My petitioners. judgment rendered for the here following opinion: expressed reasons are in the primary question The this court for is this: has decision facts, impliedly court, Do the found show that trial directly death of the insured effected or and inde- pendently through “external, causes all other violent and ac- question here, cidental means?” That the real it should negative briefly be answered in for the reasons now to state. Andrews, This is suit wherein Mrs. Elizabeth Cotton designated minor-beneficiary seeking
Guardian double to recover indemnity or accidental death benefits two of insurance issued surance Pan American and the As- Continental Harrington Company Simmons, on the life of G. now deceased. policy following issued Pan American contains the
pertinent provision:
“Upon receipt proof of due the death of the insured bodily consequence injuries solely through occurred effected external, means, (except violent of which drowning injuries case of or of internal autopsy) revealed cause, there is a tained, death occurred within [*] * * and as direct result visible contusion Company will, upon sixty days thereof, wound on the after such independently surrender of the body, and that such was sus- policy, other policy, in ficiary of all pay lieu other benefits under this to the bene- policy, subject change beneficiaries under this to the clause, beneficiary double the face amount of policy.” policy substantially issued contains Continental conclusions, provision.1 The same reached as to one would na;- “Upon receipt Chicago, Illinois, proof at its home office in of due 1.— bodily injuries directly the insured has resulted from death of effected in- through dependently external, of all causes other violent and accidntal means of insurance these contracts
turally apply Both of other. payment They unambiguous. provide double plain brought injuries about only where death results causes) independently all solely (directly other means. and accidental *12 supra provisions, agrees policy Respondent of the both against means” “death insure were written to practical parties are death.” The “accidental rather than sufficiently out in set agreement facts are on the evidence. The Therefore, it is not Appeals. the the necessary may for a except necessary as to the facts detail understanding sufficient reached. It is of the conclusions clearer not from the juncture that the court could point at this out findings other than: impliedly made evidence or means not cause officewas the 1. fire the insured’s The death. his an a clot in ar- resulted from 2. death of the insured tery of the brain. bodily injury re- artery an internal clot in the
3. The autopsy. vealed the days death, the de- insured witnessed before fire.
struction of his office records a witnessing produced reaction of the fire mental 5. The (described phychic trauma) as means a which was the artery which the clot in the was effected. wholly entirely psychic, means mental or
6. These were unaccompanied by any physical force.” free of and death, the means If the was not of the insured’s then fire give is rise a what was? There no evidence which would artery, the clot in reasonable inference that the throm- bosis, you it, day if so choose to label occurred on policy supplementary said death said contract occurred while ninety (90) days causing in full from the force within accident such pay beneficiary designated injuries, policy equal it will to the policy. said a sum to the payable face amount of the In addition to the amount otherwise under the policy. said supplementary resulting “This contract does cover death from: Bodily injuries "(a) which there no visible contusion or wound except body, drowning injuries in case of exterior of internal revealed autopsy.” an anything fire fire, than the the record show other neither does plain “external, These violent and accidental.” which could be words, policies, in other words in the two unmistakable language policies must control. There is evidence bodily injury consequence ef- that Mr. died as the Simmons through external, pro- accidental means fected violent and ducing body, contusion on the exterior of the visible or wound drowning, injuries by autopsy. or internal revealed provide recovery do not for accidental death shows, only here, where the fire evidence that the at best was contributing cause, causing purely mental reaction coverage policies simply insured. The do not afford where the unanticipated cause of death reaction to the insured’s relationship environment. There is no casual between claimed bodily injury witnessing result of the fire Mr. Sim- mons’ death. The most that can be said of the medical petitioner offered petitioner’s doctor testified *13 witnessing may the of the fire the insured have caused psychic a possible- trauma and was a of cause the insured’s death. respondent stated, effect, The doctor for the that there awas- probability psychic reasonable trauma was caused wit- enssing fire, the which caused the insured’s death. This any does not constitute evidence that the sole cause of the in- by violent, sured’s death was external and accidental means. coverage It indemnity should be noted that pro- double policies bodily injuries vided in only. both for It is clear from image the evidence that the or contents the of insured’s brain system and nervous cause, was not the sole independent efficient of all other means or causes of arterio-thrombosis; the cerebral but that the sole of cause his death came about as the result of intervening agency the system working of his mind and nervous image, entirely on the which was an means-, and, internal there- fore, not external. poison,
The inhalation and sunstroke cases are those where physical there was trauma which could traced into the in- body sured’s and which was proximate the sole and cause of the insured’s death any without intervention of other cause. In present case, physical there is no trauma which can be traced into the insured’s as the sole cause of the insured’s death, without intervention of other casual means. The respondents discharge have failed to resting burden prove them to that the death of Mr. Simmons resulted directly independently and of all other causes from and accidental means. judg- judgments of both courts should be reversed nothing. Accordingly, respondents take I rendered
ment day opinion 23rd in the of the delivered on the concur Court November 1960. ,1960.
Opinion November ddlivered Calvert, joined and Nor- Justices Walker Mr. Justice dissenting. Hickman, Justice vell Chief adopted substantially opinion out was as set below An majority of this of the court as the handed down affirming judgment its April in connection with Appeals. motion for Petitioner’s judgment of the Court majority rehearing by a reduced on October was overruled judgments majority now A concluded Appeals and the trial court should be reversed of Civil the Court petitioner. My rendered for views case case judgment here concerning proper questions in decision of they expressed as the as when were .views remain the same opinion, accordingly file majority attached and I now opinion as a dissent. guardian Andrews as Mrs. Elizabeth Cotton Suits minor-beneficiary designated of insurance issued Company Life and Continental As- Pan American Insurance Harrington Company life on the G. Simmons were surance sought recovery the trial court. In the suits consolidated indemnity respective double or accidental defendants of the court without the aid of benefits. Trial before judgment plaintiff. jury was rendered *14 affirmed. 287. provisions wording1 of the relevant of the two policy provides substantially the same. Pan American’s for proof policy upon payment face amount of the double the due of consequence insured “occurred in that the death of the of solely external, injuries violent and accidental effected policy provides payment an means.” for additional Continental’s policy proof equal to the amount of the due that death face bodily injuries directly the insured “resulted from effected of through all independently other causes and of plain provisions and accidental means.” Under the of each of the payment policies liability injuries additional attaches if causing autopsy, and are revealed an internal re- they gardless leave a visible contusion of whether or wound on body. of the the outside autopsy January 7, revealed An died on The insured (a by a arterio-thrombosis his death was caused cerebral artery brain). no contusions There were visible
clot in body. granted error on writ of or wounds the outside We only injury suffered we were of the that the because evidence, insured, having support in the which could trauma, by psychic a and we wished caused his death was holding Appeals that death to of the Court of Civil review directly type from that was in- effected through “external, dependently violent and of all other causes A of the relevant means.” brief statement some evidence is order.
During early morning Friday, hours December building there was fire insured on the floor where the accounting had an office. There is in the record origin accidental; so far as was known the of the fire there was contrary. insured, evidence to the the fire Before who age, strong forty-four years active, athletic, then was was apparently watching physically sound. He the fire was seen appeared nervous, upset witnesses who testified that he to be appeared very upset and excited. He still nervous on Saturday glasses and borrowed field in an effort to into his see day favoring right office. On the same he was observed foot. Sunday making On trips insured was seen several into and out top adjoining building, of his office from of an over a firewall, carrying files, papers, wire full of baskets etc. On Mon- day dropped he carry one helping end a desk he was into complained another leg office and his arm been had “giving day During him some trouble the last or two.” interval from about 8th December to December 17th a close something1 bothering friend noted that physically the insured acting, and that physically he was mentally, as he had complained before the fire. theOn 13th he to his sister-in-law feeling right of a lack of side of his face and of some- thing wrong right leg. night with his On the of the 17th he complained feeling well, to a friend he was not he left early. a dance losing On the he 18th told his friend he was feeling leg forgot in one and foot. The insured to mail reports 10th, which should have been mailed December 21st, unable to a check write on the same date drove his against light pole, see, automobile which he had failed to dropped cup party. of coffee at a On the 24th the insured *15 sister-in-law, spilled parts visited his dinner, coffee and of his feeling right said he had no in the side of right his face or in his foot, very and could not use his arm well. daughter Jr., accompanied the office his minor insured The 5th, Dean, doctor, December family L. on Dr. John of his great the told the doctor that fire “a deal of emotion” very, of his very and that the destruction serious had been During jam. a social visit on the 16th in a records had him limp a in his the insured had noticeable that doctor observed right leg arranged appointment for the 17th. professional a limp since a that he had had related to the doctor Insured lack day an extensive the fire. Examination revealed or two after right arm, appointment feeling leg right and an Hauser, neurologist, a 22nd. After with Dr. Abe made hospital entered a by Dr. Hauser the insured on examination the 25th. question is set out in the medical
Much of Appeals. opinion of the After form answer hospital, Dr. Hauser called in James Dr. entered the insured neuro-surgeon, operated Jr., who on the in- Greenwood, a A. a Januai-y Dr. testified that cerebral 4th. Greenwood sured congenital result from condition or could arterio-thrombosis strain; might precipitated emotional stress and that it be that surprisingly little arterio-sclerosis in brain there was that, opinion, it was not sufficient to in his insured caused the that, opinion, Dean testified in his thrombosis. Dr. produced thing reaction that that set off the chain con- “the dition, trauma;” psychic produced probably that “The fire mind, capable brain, damage producing his which is the reaction to the organs tissue, only in the cells not but other too.” hypothetical gave Darsey, question, in answer to a Dr. Edward probability was a that the that there reasonable it as psychic suffered as a result trauma insured emotional or of the thrombosis. the fire was cause single point error before this court asserts that there probative sup- no force which the record evidence will is in indemnity recovery of double accidental death port a bene- provisions of the in suit. under the fits overwhelming autopsy performed The evidence that he died of the insured disclosed from cerebral on the policy require does the "means” arterio-thrombosis. causing bodily injury autopsy, only disclosed be causing thereby. death be disclosed There can bodily injury thrombosis was internal and that question but gives autopsy. The detailed evidence above was disclosed inference thrombosis occurred on rise to reasonable *16 Darsey and testimony Dean day of Drs. the fire and the by psychic trauma probably caused that thrombosis was psychic finding implied that supports, law, trial court’s Rail- Port Terminal and death. trauma did cause the thrombosis 447, There is Ross, S.W. 2d 220. road 155 Texas Ass’n. v. testimony to the effect the record medical witnesses being they arterio-thrombosis had never heard of a cerebral regarded by psychic they such an oc- caused trauma and most, improbable, testimony presented, at as currence but that only jurisprudence has found a conflict in the evidence. Our way resolving no nesses, of wit- better conflicts in the findings through experts, jury a or trial even of than 544, judge. Coxson v. Atlanta Life Ins. 142 Texas 179 S.W. 2d 943. supports question
The difficult is whether the evidence implied finding of the thrombosis trial court the cerebral directly independently was effected of all other through external, ap- causes proaching In violent accidental means. question it should at the if be noted outset death proximately accidental means it is immaterial pre-existing may that a condition of health have made the susceptible situation, injury; more death from in that held, it is “solely” “directly nevertheless results and inde- pendently of injury. all other causes” from Home Benefit Smith, Ass’n. of Paris refused; App., v. Texas Civ. 16 S.W. 2d writ
29A Am. inquiry Jur. Sec. Our is therefore resulting narrowed to whether the cerebral thrombosis from psychic by watching destroy trauma caused the fire his office through “external, records was effected acci- problem dental is, reality, means.” The more one deter- mining impliedly whether the facts found the trial court bring the death of the insured within the terms of the determining than it is of whether there evidence of the ex- istence of the highly facts. insured was nervous and excited watching fire, a origin, destroy accidental in his office and records; generated business psychic the excitement trauma which caused a artery thrombosis in an brain from which he died. Was his death effected violent and question accidental means? The parts: divides itself into three Was the means of the insured’s external? it violent? Was Was it ? McGlinchey Fidelity Casualty Co., v. 80 Me. Rep. 190,
A. 6 Am. St. a horse driven the insured and pulling carriage riding in which he and two children were teams, ran frightened, nearly with other collided
became for a considerable brought being control. under distance before an hour. immediately and died within ill The insured became establishing a fact that accepted the evidence The court heart, ruptured vessel about blood the insured died from “extraordinary rupture was caused and concluded that *17 put forth to deceased physical which the and mental exertion concluding, the injury.” himself from So his children and save court had no concluding the means difficulty that in further specifically that death held and accidental and death was violent court then continued: by means.” The was caused “external agree defendants, however, this version not to “The do by purely produced They contend that death was the facts. whatever, and fright, any physical means aid of the through produced be con- must death was that the means which that death only. admitted But if it is to be sidered as internal strongly through fright, just as then we are was caused even * * * If the means. that it external convinced was also caused fright produced fright, death laid it must be because be to fright injury, produced were external.” and the means which holding fright an ex- would that alone be While Court’s regard dictum, it as obviously we ternal means of death is accordingly the death case sound and of the insured was effected hold in the instant
through means. The means external although only internally. may 29A of death external it acts predi- 310, Insurance, unnecessary to Am. It is Jur. Sec. 1165. physical liability policy provisions force cate under that the against spend the exterior of causes death itself should which the Co., body. Texas In Hanna Life Ins. v. Rio Grande Nat. 908, refused, approved the App., we Civ. S.W. writ Ed., following Insurance, quotation 2nd. Sec. from Vance oper- system, 258, page ating “Thus, poison 879: taken into the cause, entirely internally, is nevertheless an external drowning, g-as which the water which causes death recog- writing asphyxiation.” policies petitioners causes In their although the nized that means death could result from external injury causing by providing only for lia- death was internal bility by autopsy from resulted when death was shown to have although internal there was no contusion visible body. wound on the outside of the through effected that death of insured was also hold We * * * signifies merely “The term ‘violent’
violent means.
slight,
producing
force,
physical
is efficient
however
unnatural death
An
injury.”
784, Insurance,
45 C.J.S.
Sec.
imports
American
through
violence.
effected
accidental means
L.R.A.
Reigart,
Ky.
23 S.W.
Accident
v.
Co.
keeping
651;
310, Insurance,
with
Sec. 1165.
29A Am. Jur.
supra,
further
Hanna,
state-
theory
approved we
‘violent,’ “Likewise,
Vance,
term
ment
as follows:
merely
applied
injury,
causes of
means
It is not neces-
producing
result.
cause is efficient in
sary
a harmful
breaking
tissues
it shall
in the sense of
be violent
body.”
affecting
“vio-
visibly
physically
otherwise
psychic
in caus-
lent”
of a
trauma
its “violent” effect
force
Bailey
ing physical bodily
injury is
our decision in
settled
v.
2d 315.
American General Ins.
154 Texas
question
There remains
whether
great
insured
There is
was effected
means.
“accidental”
respect
confusion and conflict
decided
cases
particular
produced
whether death in
fact situations was
*18
largely,
caused,
accidental means. The confusion is
efforts
distinguish
jurisdictions
courts of various
between “acci-
to
means,”
dental death” and death from “accidental
see 166
469-479,
A.L.R.
Mr.
was forecast
Justice Cardozo in
dissenting opinion
Co.,
in Landress
Mut. Life Ins.
v. Phoenix
491,
934,
461,
1382,
291 U.S.
78 L. Ed.
A.L.R.
in
Ct.
90
S.
attempted
which
“plunge
he said the
distinction would
Bog.”
many
branch of
the law into
Serbonian
The courts of
jurisdictions
rejected
repudiated any
have
or
such distinction.
may be,
recognized
The applying in rule is when the distinction observed is no comparing Bryant better illustrated than cases, recognized supra. Bryant Landress In this Court and, applying it, distinction that death of an held insured walking from sunstroke suffered while on the streets of Houston through was effected Supreme accidental In means. Landress the recognized but, Court of the United States also distinction applying it, held that death insured from sunstroke playing golf suffered while was not effected accidental Now, means. obviously, (upon location the insured golf street course) or on the when the sunstroke is occurred differing holdings, the activ- as neither is basis- for no sound walking pur- in the ity (walking pursuit or of business Moreover, engaged. pleasure) suit the insured was which is, rule; both apply purported the same courts to both recovery enough predicate recognized to courts it was not exposure voluntary accidentally that death resulted from necessary should rays, that death sun’s but that it was reasoned courts Both resulted from “accidental means.” rays voluntary exposure to the sun’s death from unexpected and extra- unusual, unanticipated, in that as em- ordinary. “means” the word This reasoned Court synonymous with ployed means” is in the term “accidental exposure “cause,” expected that and that is not usual or since it cause, rays that the to the cause death it must follow sun’s will Supreme “means,” Court of death was accidental. producing means” reasoned the “external United States allega- rays and found no the sun the insured’s death was the unexpected or anything rays which was tion of in the sun’s unforeseen. analogous involving the facts in The decided facts cases enlightening greatly
the instant few and case are are only entirely satisfactory precedents. in which cases discovered, problem has other is discussed which our research McGlinchey Casualty Co., supra, In- Fidelity than v. App., Branum, ternational Ass’n. Texas Travelers’ v. Civ. Campbell, 389; Ins. Provident Life & Accident Co. v. App., Mut. Life Tenn. 2d and Pierce v. Pacific 79 S.W. Ins. 7 Wash. 2d 109 P Branum, v. International Travelers’ Ass’n. *19 bursting apoplexy Appeals of held that death from Civil —the by of a the excitement of blood vessel in the brain —caused fire, by
witnessing or a man to death in an accidental burned the produced by excitement, by both, a fall an accidental was by judgment, death and a death caused means. The accidental grounds by Appeals of the on other Civil was reversed Texas problem. 109 Court without discussion of the See Co., 212 Ins. Texas 630. In Robinson v. Aetna Life S.W. opinion App., of the Com. 276 the court cited the S.W. recognizing Court of in Branum as a basis apoplexy pro- that there is a distinction death from between commonly by “apoplexy duced natural causes or as that term is understood,” apoplexy produced by and death from violent and accidental means Campbell, Ten- a Ins. Co. v. Accident Provident Life & court, in- appellate Appeals, an intermediate
nessee Court establishing an insured that death of terpreted the evidence as hemorrhage by combination of a a was caused from cerebral and “mental in the brain pre-existing a condition blood vessels against child, running held a an automobile shock” from exclusively” either “solely from death not result did if say way by of dictum even cause. The went on court to excitement within The case is of doubtful it was “of the pre-existing contemplation or ‘mental disease did not contribute to * disturbance’ * * of the insurance contracts that a * [*] * purely is not ‘mental cause the a shock’ ** due precedential in Tennessee. value even Follett, & Acc. Tenn. 80 S.W. See Nat. Life Ins. Co. v. 92; Ellison, 2d American Ins. 2d 115. North Co. v. 267 S.W.
Perhaps analogous closely Pacific Mutual most is Pierce v. provided Life Ins. Co. was on two accident which Suit weekly “Against Bodily payments indemnity Injury for tained as sus- * * * * * solely accidental means *.” evi- badly frightened dence established that the insured became “slammed and suffered a cerebral hemor- brakes” rhage appeared when a it collision his automobile between and another was inevitable. There was medical hemorrhage by ruptured was caused vessel blood precipitating rupture that “the cause combination fright physical by and the sudden effort then exerted” Supreme Washington the insured. The Court of stated that one questions called to answer was “whether fright, shock, unaccompanied physical impact, or mental by is sufficient purport to constitute means’ ‘accidental within the policies.” of question term used in the Court answered upheld affirmative the insured. Recovery Other squarely cases which are not point but are which by petitioners cited persuasive point to their view Ross, International App., Travelers’ Ass’n. v. Texas Com. (Death rupture S.W. of a blood vessel in the brain by straining vomiting while held to be caused means) ; sickness and not Radcliffe v. National Life & Accident Ins. App., Texas Civ. refused, (Death writ n.r.e entry from suffocation caused into lungs regurgitated or vomited contents of the stomach held to be caused means) ; neither external nor accidental *20 Indemnity Douglass, Hartford Cir., Accident & v.Co. 5th 215 (Death ruptured F. 2d 201 by from aorta caused strain lift- 414 by grapefruit
ing caused accidental a crate of held not to be means). are squarely point in which are not but
Other cases which Pledger Business persuasive respondent’s point v. of view App., 228 S.W. Texas, Texas Com. Men’s Accident Ass’n. of lifting by caused (Death rupture from of heart vessels 110 against was “accidental bales of The hazard insured cotton. It means.” by death” than “accidental rather death caused it was death” because an “accidental held that caused the death was Ass’n. by means”) ; Benev. Mut. Ft. Worth “accidental Miller, writ dismissed App., 338 Texas v. Texas 280 S.W. Civ. pushing by (Death ruptured artery caused from a the brain only”) ; an means caused “accidental automobile held be App., Smith, Texas, Paris, Texas Civ. Home Ben. Ass’n. of v. 357, (Death ruptured vessel 16 from blood 2d writ refused S.W. by cranking “caused an automobile held to be caused accident”); Ass’n., Texas Travelers’ v. International Garrett history, (Death car- App., from 2d no writ Civ. S.W. rubbing pimple picking on nose bunclar infection caused means”) ; “external, In- accidental held to violent and be from App., Yates, ternational v. Texas Com. Travelers’ Ass’n. gas as anesthetic (Death 2d 980 from administration of S.W. ; through means”) International Travelers held to be “accidental 1, (Death Francis, from As’sn. 2d 282 v. Texas 23 S.W. “solely following" caused infection extraction of a tooth held to be means”); by external, exclusively and accidental and International Travelers’ Ass’n. violent Bettis, App., 52 Texas Civ.
v. 1059, refused, (Death poisoning from from 2d writ on blood S.W. finger “external, violent accidental held to caused cut means”) ; Ass’n. v. and accidental International Travelers’ Marshall, 558, on other App., 2d reversed Texas Civ. 94 S.W. grounds holding 2d 851 approved, but 131 Texas S.W. (Death against a tractor wheel peritonitis caused fall from ; through means”) Hanna v. Rio held to be caused “accidental App., 2d Grande Nat. Life Ins. Texas Civ. taking refused, (Death voluntary prescribed writ from by “external, number of sulfanilamide held to be caused tablets ; means”) Life Ins. Co. accidental Pacific Mut. Schlakzug, California v. 143 Texas 183 S.W. (Death by plucking nostril from infection hair through means,” “external, held effected violent and cut and also that “an accidental the infection occurred by intentionally plucking hair.) or wound” made theory It is said this Court has observed above *21 415 death and accidental a distinction between of cases number indicate, later cases accidental means. theory than more in however, observed that the distinction is Francis, extraction of supra, it held that is in was fact. In followed and means of the infection which the tooth was the tooth was de- Now, obviously, caused death. extraction accidental, and death from extraction liberate not but produced by accidental means tooth was nevertheless held to be unexpected and of the tooth had the because extraction unforseen, introducing accidental, pythogenic effect thus holding organisms support into the In its blood stream. Insurance, extensively Cooley’s quoted from Briefs “* * * Ed., p. 5234, 6, part an 2nd Vol. as effect follows: probable consequence which not is the natural or of the means it, produced ordinarily which and cannot effect follow which does reasonably anticipated from the use such means, an produce effect which actor did not intend charged design producing, which he cannot be with the ** *” produced by particular accidental means. The Court laid major stress the fact vis act of so con- God was nected part with the extraction of the tooth as to become act; parcel thus, said, means, although of that it was volun- tary, took color from the unknown and fatal factor and became opinion accidental. In the course of its the court disclaimed departing intention of Bryant from the rule of the case. making Hanna, supra, thereby
We refused writ of error in opinion in that case as authoritative as our own. In that case Appeals analyzed the Court of Civil the Francis length regard Bryant at and said it did not that case and conflicting, but the court added that if there Francis was conflict regarded recog- later and should be It authoritative. also nized that liberal jurisdiction Francis committed this to “the more given
rule” if voluntary the death which follows a act unexpected is such as way follows in an unusual and produced by death is support accidental its con- means. Taylor clusion the v. quoted approval court cited and 171, 912, New York Life Ins. Minn. 176 222 N.W. 60 A.L.R. local in which death resulted from administration of a hypersensitive. anesthetic to which the insured’s The Minnesota produced by Court held death was accidental “* * means weight authority said: is to the effect the term equally descriptive ‘accidental’ is of means which produce effects which probable are not their natural and con- sequences, as it wholly unexpected.” of means which are effect, To the same Murphy, see Seaboard Life Ins. Co. v. Ins. Life Co. Pacific Mutual
Texas S.W. Schlakzug, Texas 2d 709. v. distinc- clearly appears
From the cases reviewed it recognized death” generally “accidental tion once between used means,” terms produced as those “death contracts, longer state. Now in this insurance exists *22 case. of this apply rule has to the facts the as it been evolved consequence It is of no the fire was whether origin insured’s means of the not the otherwise. fire was viewing the psychic from death. The resulted trauma which viewing the fire was the means or cause his death. the accident; voluntary But fire and deliberate. viewing wholly unexpected, produced unusual fire artery the And catastrophe unforeseen in an brain. clot—a may say excitement even if reaction extreme we flowing witnessing and records his office destruction of yet compelled say, unusual, basis common was petitioners’ we own medical as well as from knowledge, generation of a arterio-thrombosis cerebral It from the result. excitement was an unusual and unforeseen drowningi logical and and cannot be distinction between asphyxiation the external cases and case that whereas body through violent force the nose in those cases entered organs by injury the mouth and caused to other body case external violent force in this entered eyes by injury insured, and caused death to the brain. We therefore that the the evi- hold death of the under produced by case, dence adduced in this acci- was effected or dental means. rehearing by petitioner
The motion for filed herein should judgment be overruled of Civil should be affirmed.
Opinion delivered November 1960.
Rehearing overruled December