*1 usually character witness final. See 53, Tex.Jur.2d, these matters 52 and Secs. 61, p.

Vol. 593-596. point

We overrule four. error,

Finding judgment of the affirmed.

Affirmed. TRAVELERS LIFE & ACCI-

COMMERCIAL CO., Appellant, DENT INSURANCE

Roy BRUCE, Appellee. L.

No. 180. Appeals of Civil of Texas.

Court

Corpus Christi.

Jan. 1966. Rehearing

First Motion for Denied June Rehearing Motion for

Second Denied Aug. 11, 1966.

Harless, Bailey Youngblood, & Fred Dallas, for Youngblood, Harless and Bruce appellant. Johnson, Sinton,

Frederic *2 635 appellant’s first reply In to OPINION counterpoint by points, appellee contends SHARPE, sickness disability his arose one that Justice. disability policy by the and such covered rend- judgment a appeal an from This is to, directly by or contributed was not caused L. Roy of ered after trial in favor pol indirectly, by or hernia. The insurance below, Bruce, appellee, plaintiff against It 8, 1960. icy December sued is dated Life Accident Commercial Travelers and amounts provides for indemnities in the Co., defendant below. appellant, Insurance for loss including specified therein, benefits policy providing is on an suit insurance of con beginning day the first of time with disability due indemnities for loss of time to the rate confining disability at tinuous total hospital and confinement. The found month, per of an with additional $300.00 as special in to numbered answer issues indemnity for per month time $300.00 time (1) plaintiff had loss of indicated made hospital. fined Attached to and 1964; 7, January due to sickness after part a of rider policy exclusion an (2) plaintiff loss of time such as reading follows: totally disability; (3) had total that he was hereby agreed “It is and understood 24, 7, 1964, January disabled from to March of in consideration of the issuance 1964, period days; (4) a of his loss 77 policy, agrees above described the insured disability or not or was caused contributed indemnity pro- any waive claim hernia; by (S) a dis- (to be unanswered by policy any vided on account of hereinafter); cussed (6) and that $500.00 disability hereafter sustained which was attorney a reasonable fee. by shall be by caused contributed The trial rendered hernia, indirectly; and, directly benefits, penalties $960.00 in the amount agrees the insured further rider that this 12%, of or $115.20, attorney’s and of fees part shall continue to and remain a $500.00, aggregating $1575.20. policy said as main- long it shall be effect, tained in any provisions force and Appellant urges points six of error contrary to the notwithstanding.” substance as point one, follows: the trial court should judg- have rendered pleaded policy ex expressly Appellant ment for because the evidence had and above-mentioned clusion conclusively established that the loss and non-applica establishing the burden disability claimed appellee was caused of Civil 94, Texas Rules tion of it. Rule by or hernia, contributed either direct- & Ab Procedure; v. National Title Shaver ly or indirectly, such and be- Ap- pe Co., (Tex.1962). 361 867 stract S.W.2d excluded the terms of but he had such burden concedes that llee upon; by sued points three, two and legally says discharged it was the evidence factually was insufficient support factually prove that the loss and disability was to was findings which established that he by or to by contributed di- disabled, for which tally time rectly indirectly, to support an- disabled, neither special 4; swer to by point four, that nor caused a the trial court failing erred in include words “either spe- indirectly” testi consists of the 4, cial wording since part said pursuant mony his policy; exclusion rider in the T.R.C.P., 169, requests under Rule six, five and that the evidence is first Appellee his hospital records. factually insufficient to the answer on loss of day of Jan question 1964, 7, issue six on the of attor- to the uary when he was admitted hospital January he remained until where ney’s fees. appellee's 16, 1964, period days. He re- if the hernia contributed to cause of ten then, it January loss and to the extent that to the admitted contributed, 25, 1964, period of January four so is not entitled to recover. he hospi- days. again He was admitted question concern- There is no serious fact 28, 1964, remained tal where *3 appellee’s hospital con- second and third February 1,1964, period days. until five supports the view finements. The evidence was, hospital The total confinement there- they the hemorrhoid condi- that were due to fore, April 24, 1964, days. ap- On nineteen operation. to tion With reference pellee partial returned work and thus to evi- pellee’s hospital confinement the first period the he terminated for which could sufficient, factually to legally and dence is claim benefits The policy. under the record to support finding appellee that went the January 8, shows that on opera- hospital primarily for of the hem- treatment performed tions were on one for repair of the her- orrhoid condition the for one hemorrhoids and one for a incidental; further, appellee nia was that nodule The right epididymis. in the two hospital the on gone into would have subsequent hospital readmissions the alone; and, of the account hernia condition hemorrhage for resulting were from re- further, condi- the hemorrhoid and nodule opening during of the incision made the the loss of tions sufficient to cause were operation. Appellee hemorrhoid testified disability time and without reference that he hospital entered the originally jury findings hernia. In addition to the removed; order to have the hemorrhoids mentioned, the court hereinbefore also prior that the hernia for thereto had special issue 5 submitted which year; more than a no that it was worse only answered if in answer time; than it long had been for a that it appellee’s 4 the loss or jury found that dis- did not particularly him; bother ability had been caused or contributed he would not hospital have entered if the by a 5 as fol- Special reads complaint his Ap- sole had been the hernia. days you do many lows : “How months pellant this by offering countered preponderance find of the evidence the showing records op- the three disability that total and loss and, erations in the order above-mentioned time, any, if or contributed to was caused particularly, hernia the as the one number spe- jury hernia?” the Since answered admission, reason for along with other ref- appellee’s cial issue 4 to effect the erences and notations it. concerning disability was not caused contributed hernia, special 5 an- factually issue was not The is legally appears jury swered. It thus that the be- findings support sufficient to the lieved and so found the sickness which disability plaintiff total of time and his loss of as well as days seventy-seven for the disability days seventy-seven was due 24, 1964, 7 due to to March nodule, the condi- hemorrhoids and the meaning policy. sickness within the policy, tions rather than to covered the question There loss of time and is operation it. hernia and the disability resulting from the hemorrhoids operation and the and treatment thereof Life Casualty & American In the case as for the well nodule covered were (Tex.Civ. 392 Butler, 215 S.W.2d v. Co. policy. question appel- not whether held wr.ref.n.r.e.), court App., operation lee had a hernia or an thereon. disability suffered Instead, the issue whether would that if substance cov aby disease was caused have suffered the loss of time and claimant which was account of regard- the covered sickness ered regard disability without less of the thereof. hernia and the treatment cause such the cov e., but for so, not, factors, tributing If he is entitled to recover. If i. so would not hemorrhoids or nodule ered excluded disease disease the ex it caused or then the could find that have resulted The words caused or cluded would not have disease “directly indirectly” not essential within were contributed to issue, to a correct of the ultimate exclusionary provision. submission meaning of the of the words particularly here. in view the use applicable rule therein announced is pre- “caused or Error is not contributed”. conclusively The evidence herein did not by appellant’s point and it is sented four disability claimed establish that the loss and overruled. by appellee caused or contributed to by hernia, indirectly, and appellant its five and six refusing the trial did not err in contends that the evidence is render on that basis. factually insufficient *4 hand, On the other the evidence was special answer to the fixing issue amount and factually sufficient to authorize the of appellee’s aas reasonable fee for $500.00 jury find, special it did in as answer attorney. argument thrust The of the here appellee’s that loss and is that no testimony there in the record is was Ap- not so caused or to. as to performed by what were services the pellant’s one, points two and three are over- attorney questions for pro and the ruled. pounded only witness, an attorney the matter,

who concerning testified the were hypothetical point four in nature. record reflects appellant its contends The appellee’s that that failing the trial court erred in to in witness this issue was the district for attorney clude the “either or the 36th Dis directly words indirect Judicial ly” Texas, in trict of special practiced who also issue 4. That civil issue reads as law. He testified you preponder follows: “Do find was familiar with the fees charged of by attorneys ance plaintiff’s the evidence that in the area where the case any, if was was tried. He in not contrib was advised the questions uted by of jury a hernia?” asked him as to of To which the the nature claim, the answered “It was the amount a Appellant’s not”. ob thereof and that jection jury involved; was, trial was part, original the in “that the that an petition directly request words ‘either filed as a indirectly’ been as should well for admissions; special added to in there included said is were sue for part hearings the to the time wording depositions, reason that said and as of spent the in the investigation preparation exclusion for insurance tract plaintiff.” Appellant’s sued on the trial. The a minimum witness testified that entire argument for filing petition under fee was point this is that $250.00 ‘Since wording said additional authorize impor constituted an services and time would part tant of the fee of par Although contract at least there between the $500.00. ties, it was no separate testimony should been as the amount have included said is prepara sue as of spent wording inquiry investigation has of elements going trial, request tion pleadings, an ultimate for for par fact issue and ticularly in part of answers of the theory view the which admissions and were Plaintiff record jury. tried his case. and before the was obvious Texas Rules of It Procedure, Civil being Rule case tried on contested 279.” There was no was oppor of any evidence herein indirect relation be and it had basis before tween the hernia and on the tunity the time efforts dis to observe ability. The part hernia either caused or of for counsel testimony of contributed to trial. course of the actual The or it witness, way opinion, did not. There of as to was no evidence that coupled aggravated hernia filing caused or either the the suit minimum fee for 8.There no medical evidence to the were was the facts known which

with contribute, sufficient, witness, the hernia did also was related indirectly, directly or subse- factually, the find- legally and quent a reasonable of the $500.00 hemorrhaging. fee. No claim excessiveness is made six appellant. Appellant’s five and Request Request granted. 1No. No. are overruled. correct, substantially qualified 2 is but is the extent the discussion under is af- shown judgment requests requests actually The latter 3-8. firmed. They

call for conclusions law. involve that there was “no contention medical ON MOTION FOR OPINION concerning subjects evidence” men- REHEARING tioned and will be treated “no evidence” part rehearing motion for points. As a of its Requests 3-8 have been considered pellant request find- makes for additional appellant’s point in relation one its ings fact, original as follows: which asserts that the trial brief court should have rendered operation performed hernia conclusively because the evidence knowledge and with the consent established the loss and claimed appellee was caused or con- *5 to by tributed in- physicians testified and the

2. No directly. pellee no offered medical evidence. Appellant’s requests 3-8 are denied. medical as to no evidence There was Hospital covering appellee’s records necessity any the relative operations. several February 1964 to 1964 were offered appellant and received evidence without was no medical evidence as 4. There objection upon stipulation they complexity gravity or relative Among were true and correct. other surgical operations any of the several things, reports included records performed upon opinions operated upon of doctors who appellee treated well as nurses and lab- no medical evidence as 5. There was oratory records, reports records. The any disabling-nature of the relative opinions coupled contained therein with the operations. several testimony constituted medical 6. There evidence authorizing an relation be- there was not indirect appellee’s disability believe that and loss of the hernia and the tween time were caused the hemorrhoids and disability. nodule aside from conditions expressed We medical adhere to the conclusions was no 7. There appellant’s in our original opinion and mo- aggravate not cause the hernia did tion for rehearing or the nodule. overruled. the hemorrhoids