! Clоdus B. Wright sued The Western and Southern Life Insurance Company to recover on its policy the amount payable for -loss of a foot. Under the terms of thаt contract the company agreed to pay $5,000.00 for loss of a foot “solely as a result of accidental bodily injury sustained or disease contracted while this policy is in *791 force.” The Company answered that Wright did not lose his foot as the result of an accidental bodily injury sustained or disease contracted while the policy was in force; that he was shot while robbing the Brook Hollow Country Club and his conduct was such that he should have anticipated that, in all reasonable probability, some one would shoot him and, in all reasonable probability, he would sustain bodily injury.
It was stipulated that the policy was in effect when Wright’s leg was surgically removed; that removal was necessitated by gangrene, which was caused by being shot while he was engaged in said robbery; that when Wright was shot his conduct was such that he should have аnticipated that, in all reasonable probability, he would get shot and, in all reasonable probability, he would sustain bodily injury; that as a consequence of committing robbery he was shot and, as a result of getting shot, he contracted gangrene in his leg necessitating its removal and that Wright was convicted of rоbbery and is now in the penitentiary. It was further agreed that the shot injured plaintiff’s arteries and blood vessels, reducing the circulation of blood to his right leg; that Wright сontracted gangrene as a result of such reduced circulation; that gangrene would not have been contracted but for the gunshot wound and that, if plaintiff had not contracted gangrene, removal of his leg would not have been necessary. It was also agreed that, appellant being in the penitentiary, the case would be tried “under the stipulations and pleadings on file.” Both parties moved for a summary judgment. The insurance company’s motion was sustained and judgment was rendered that plaintiff take nothing. Wright has appealed.
Wright contends the court erred in sustaining the company’s motion and rendеring judgment for it because the policy provided that it would pay him for loss of a foot “solely as a result of accidental bodily injury or disease” and, sinсe it was stipulated that Wright’s leg was surgically removed because of gangrene and that if he had not contracted gangrene removal would not havе been necessary, that all conditions prerequisite to recovery were satisfied. Appellant says he relies on the contract, as written, and under its provisions and the facts stipulated, he was, as a matter of law, entitled to recover; that the policy does not exclude recovery for loss as a result of gangrene, nor as a result of a disease contracted by reason of an injury of any kind; that there is no exception to his right to recovery as the result of a disease contracted by reason of an injury suffered while he was committing robbery. He says that, under the stipulations, it is estаblished that he lost a foot as a result of a dis-sease contracted while the policy was in effect, citing International Brotherhood of Boilеr Makers et al. v. Rodriquez,
The Insurance Company says there was no agreement that all relevant faсts were included in the stipulation, but it was agreed the court would render judgment upon what plaintiff “brought before it.” It says appellant has failed to provе, or raise a fact issue, that loss of his foot was caused “solely as a result of — disease”, as required by the policy; that the policy limited coverage to loss sustained solely as a result of disease and under our Supreme Court’s decision in Mutual Benefit Health & Accident Association v. Hudman,
“ ‘Independently’ means ‘solely’, ‘only’, ‘standing alone’—
The logical meaning of the poliсy terms limits the coverage to accidental bodily injuries which are the sole cause of death— * * * The idea that one factor is independently a cause leaves no room for the idea that it yet may be dependency caused. An independent cause does not mean that it is a joint, contributing or concurring cause.”
Appellee, in support of said contention, also cites Zorn v. Aetna Life Insurance Company,
Gangrene was not a new and independent cause of the loss of appellant’s foot. Compton v. American Airlines, Inc., Tex.Civ.App.,
The sole proximate cause of appellant’s loss was not an accidentаl injury. When one should, in all reasonable probability, expect an event to result from his voluntary conduct the happening of that event is not an accident. In Releford v. Reserve Life Insurance Company,
“As stated in the Hutcherson case, [Hutcherson v. Sovereign Camp, W.O.W.,112 Tex. 551 ,251 S.W. 491 ], the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the killing, but rather from the viewpoint of the insurеd. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability his wife would kill him, his death was not accidental' — .”
Undеr the agreed facts, appellant should have anticipated that, in all reasonable probability, he would be shot and injured while robbing the club, therеfore his injury was not accidental. We further conclude that under the stipulated facts the gunshot wound was a proximate cause of gangrene and that as a matter of law said “disease” was not the sole proximate cause of the loss of appellant’s foot. 32 Tex. Law Rev. 245; 45 C.J.S. Insurance §§ 753, 756, pp. 779, 785; Tix v. Employers Casualty Company,
The judgment is affirmed.