101 S.W.2d 594 | Tex. App. | 1937
H. G. Green held an accident insurance policy in appellant company at the time of his death following an automobile accident, in which his wife, appellee here, was the beneficiary. The company denied liability, and appellee sued for the amount of the policy ($2,000), penalty, and attorney’s fees. The case was submitted to a jury upon special issues which were answered in favor of appellee, and judgment entered accordingly; hence this appeal.
The policy contained the usual provisions for payment in case the “death of the insured shall result directly from bodily injuries effected exclusively and independent of all other causes through external and accidental means”; and excluded liability in case death should result “from any violation of law; , * * * or directly or indirectly, wholly or partly, from disease or mental infirmity.” In addition to a general denial that deceased met his death within the provisions of the policy, the defendant pleaded that such death was caused wholly, or at least was contributed to, by bodily disease.
The findings of the jury in answer to the special issues Nos. 1 and 2 submitted were as follows:
That the death of the insured did not result’ (1) “directly or indirectly, wholly or partly, from disease,” nor (2) “as the consequence of an accident occasioned by operating his automobile in excess of 45 miles per hour.”
In answer to issue No. 3, they found that his death did result “directly from bodily injuries effected exclusively and independent of all other causes through external and violent accidental means.”
The only contention made -on this appeal is that there was no evidence to support these findings of the jury. .The following material facts were shown relating to the death of Green: The deceased was found dying in his car on a state highway between Maysfield and Cameron, following an accident. Deceased was a drug salesman. On the afternoon of his death he entered a drugstore in Maysfield and asked for water with which to take a dose of Bisma-Rex, a preparation designed to give relief from gastric acidity, sour stomach, etc. At that time he was pale, in pain, and holding his hand over his heart. After taking this medicine he went to the back of the store and tried to vomit. He then returned to the drug clerk, secured and took a half teaspoonful of paregoric, and asked the clerk to telephone to a doctor in Cameron, to which place he was 'en route, to leave there immediately and meet him on the road, to give him a hypodermic, as he feared he could not reach Cameron without it. This was done, and Dr. Brooks started from Cameron for that purpose. Between . Maysfield and Cameron, -on a
No instructions were given or requested as to what would constitute a “disease” within the purview of the policy; nor as to the meaning or scope of the term “accidental.” Nor do we find any evidence that prior to the accident the deceased’s heart was in any manner “diseased,” as that term, used in such policies, has been construed to mean. As stated in 18 C.J. 1139, such term implies “some ailment or disorder of somewhat established or settled character.” A mere temporary condition, local in nature, which passes shortly, and after its passing the body again becomes normal, has been held not to constitute a “disease” as used in such policies. Mr. Justice Taft while Circuit Judge, in Manufacturers’ Accident Ind. Co. v. Dorgan (C.C.A.) 58 F. 945, 955, 22 L.R.A. 620, cited with approval and followed in Robinson v. Ætna Life Ins. Co. (Tex.Com.App.) 276 S.W. 900, used the following language: “In a broad, generic sense, any temporary trouble by reason of which a man loses consciousness is a disease. It is a condition of the body not normal, and produced by the imperfect working of some function, but as the imperfect working is not permanent, and the body returns at once, or in a- short period of time, to its normal condition, it does not rise to the dignity of a disease. A fainting spell produced by indigestion or a lack of proper food for a number of hours, or from any other cause which would not indicate any disease in the body, but would show a mere temporary disturbance or enfeeblement, would not come within the meaning of the words ‘disease and bodily infirmity,’ as used in this policy.”
The exemption from liability in the policy involved in that case was fully as restrictive as the one involved in the instant case. The mere fact that the deceased was holding his hand over his heart when he was in the drugstore, under the circumstances, was not in itself evidence of any organic diseased condition of his heart. The jury had a right to conclude from the fact that he was taking medicine for a stomach disturbance that he merely had a stomach disorder caused by gas, indigestion, or an excess acid condition. The testimony of his wife indicated that such might have been his trouble when he was in the drugstore at Maysfield. Such stomach disturbances frequently cause what is commonly called “heartburn,” whereas there may be no organic disability, of the heart whatever. Absent any other proof
Under the factual circumstances, therefore, and reasonable inferences which the jury could properly draw from them, we think their answer to the first question has sufficient evidence to sustain it.
A more serious question is presented, however, with reference to the finding that death did not result as a consequence of deceased’s violation of the speed laws upon the state highway. The evidence negatived any mechanical defect of the car, or that its leaving the highway was due to loss of control or loose gravel. The car was not thrown out of line nor was there any evidence of skidding. The un-contradicted testimony of appellee’s own witnesses was that immediately before the crash the car was traveling at from 60 to 70 miles per hour. This violation of the law having been shown, under the terms of the policy, • the burden was upon the appellee to show that Green’s death was not the result thereof. International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.(2d) 1040; Metropolitan Life Ins. Co. v. Funderburk (Tex.Civ.App.) 81 S.W.(2d) 132, 134. Even if it be assumed or conceded that deceased had a fainting spell or became temporarily unconscious, and that the injuries received were such as to cause his death, the very havoc wrought by the car after it left the paved portion of the highway, the indicated momentum which it had acquired, and the consequential violence which the deceased necessarily encountered as a result, almost conclusively show, we think, that there was a direct and proximate relationship existing between this excessive speed and the resultant injury. We find no evidence in the record indicating the contrary. If the external injury resulted in death, the injury obviously was attributable in large measure to the high rate of speed at which deceased was traveling. We find no evidence to the contrary. Under such circumstances we must conclude that this finding of the jury on this issue was without evidence to support it.
However, since it appears that the case has not been fully developed on the issues involved, and we are not prepared to say that all the evidence has been adduced which might be available, we think the ends of justice might be better sub-served by reversing and remanding the cause, than by rendering judgment. The judgment of the trial court will therefore be reversed and the cause remanded.
Reversed and remanded.