Hutcherson v. Sovereign Camp , 112 Tex. 551 ( 1923 )

Plaintiff in error, so far as is material to here state, in view of the conclusions reached, sought by this action to recover as the beneficiary designated in a benefit certificate, issued and delivered by Defendant in Error, insuring the life of her husband. From an adverse judgment in the District Court she prosecuted an appeal to the Court of Civil Appeals for the First Supreme Judicial District, where the judgment of the lower Court was affirmed.

The "certificate" sued upon partakes of the nature of an ordinary life contract, and constituted an obligation on the part of the insurer to pay her the money therein stipulated upon the death of the assured at a time when all assessments had been paid and while, under the by-laws, constitution and certificate, which were made a part of the contract, the insured was in good standing.

Among the provisions and conditions specified in the contract thus formed, of which there were many, but one is considered material. It provides:

"If the member holding this certificate should die by the hands of the beneficiary, or beneficiaries, named herein, except by accident * * * * * this certificate shall be null and void and of no force and effect, and all moneys which shall have been paid, and all rights and benefits which shall have accrued on account of the certificate shall be absolutely forfeited, without notice or service."

Under this provision of the contract, Defendant in Error, by proper pleadings then and now seeks to defeat a recovery.

It appearing that the insured did die by the hands of the beneficiary, we are called upon to determine whether or not, in the circumstances of the killing of the insured by the beneficiary, as agreed upon, the trial Court and the Court of Civil Appeals have correctly determined that the circumstances of the killing were such as to bring the same within the exception defended upon, or was not an accident.

The beneficiary was not an active party in the making of the contract. She had no vested interest therein, her rights in the contract were purely beneficial and was entirely contingent on the contract being in force at the time of the death of the insured, without his having changed the beneficiary. The Court of Civil Appeals therefore correctly determined that the issue as to whether the killing was, or not, an accident, must be determined from the standpoint of the assured. An event resulting in death may be objectively accidental, though the event causing such accident may subjectively arise and result intentionally on the part of the person responsible for the subjective cause. Biddle on Insurance, Chapter 10, Volume 2, Page 78. Fidelity Casualty Company v. Johnson, 72 Miss. 333, 30 L.R.A., 208; American Accident Company v. Carson, 99 Ky. 441, 34 L.R.A., 301, 59 Am. St., 473; Accident Insurance Company v. Bennett, 90 Tenn. 256; Richards v. Traveler's Insurance Company, 89 Calif., 170, 23 Am. St., 455; Supreme Council Order of Chosen Friends v. Garrigus,104 Ind. 133; 54 Am. Rep., 298; Robinson v. United States Mutual Ac. Assn., 68 Federal, 825; Lovelace v. Traveler's Protective Association, 126 Mo., 104, 28 S.W. 877, 30 L.R.A., 209; Phelan v. Traveler's Ins. Co., 38 Mo. App., 640; Gresham v. Equitable Accident Ins. Co., 87 Ga. 497, 13 L.R.A., 838, 27 Am. St., 263.

The case was tried upon an agreed stipulation of facts, signed by the respective parties, and afterwards approved by the Trial Court as being the facts so agreed upon and upon which the case was tried. Article 1949 of the Revised Statutes provides for the trying of causes upon agreed statement of fact. When a case is so tried, the agreed statement is to be considered in the light of well defined legal limitations, and in the nature of a special verdict, it admits there is no dispute as to the facts, and constitutes a request by each of the litigants for a judgment, which each contends arises as a matter of law from the agreed facts.

The Courts are without power, in the absence of a provision in the agreed statement providing otherwise, to draw any inference, or find any facts, not embraced in the agreement, unless, as a matter of law, such other inferences are necessarily compelled; and the judgment of the Court must only declare the law which necessarily arises from the facts agreed upon. Article 1949 R.S.; 38 Cyc., Page 1934; Texas Mexican Railway Company v. Scott,129 S.W. 1170; Ozark Plateau Land Company v. Hays, 105 Mo., 143,16 S.W. 957.

As a general rule, conclusions of fact by the Trial Court have no office in the trial of a case upon an agreed statement of facts.

Two other principles of law, properly understood and applied render much aid in correctly concluding what judgment, as a matter of law, under the facts agreed upon, and to be hereafter analyzed, necessarily arises. The one, whether the beneficiary, or the insurer, carried the burden of proof; the other, whether, if the insurer had the burden, it can recover, unless the facts agreed upon by it compelled, as a matter of law, a judgment in its favor.

While the first question is not altogether free from difficulty, we have concluded that the great weight of authority places the burden of establishing the exception defended upon on the insurer. The identical question, so far as we have been able to find, has never been decided by the Supreme Court of this State in a suit upon an ordinary life policy, or certificate, carrying such exception. It is to be observed that the exception defended upon is not embraced in, and does not form a part of, the provision obligating the insurer to pay in the event of death, while the insured was in good standing, but is inserted in a different place in the certificate as a proviso against liability in the event the assured died by the hands of the beneficiary, except by accident. The exception "Except by Accident" appears in, and is a part of, the general exception in the certificate relieving the insurer from liability in the event of death at the hands of the beneficiary. The whole exception, and each part thereof, must be considered together in determining what excuses the liability of the insurer, and when so considered the provision "Except by Accident" constitutes within the general exception itself a limitation upon such general exception, and therefore, the general clause, considered in its entirety, is but a limited or conditional exception against liability and, therefore, falls within the general rule which places the burden upon the insurer to establish an exception against liability, where such liability "prima facie" appears, and compels a judgment in favor of the beneficiary unless removed by the facts.

The question, as it arises in this case, is clearly distinguishable from the holding in Traveler's Insurance Company v. Harris, (Com. of App.), 212 S.W. 933. That was a suit upon an accident policy, and before the insured could recover he had to establish the accidental event insured against, while here the beneficiary's case is made when it is shown that the insured had died while in good standing, with all assessments paid, if no other facts appeared. It was not incumbent upon her to show how he came to his death, and the only way the insurer could escape liability when it was established that the insured had died while in good standing, with all assessments paid, was to establish by evidence not only that he had died by the hands of the beneficiary, but that he had so died under such circumstances as did not constitute an accident. Grand Fraternity v. Melton,102 Tex. 401; Home Benefit Association v. Sargent, 142 U.S. 691, 35 L.Ed., 1161; McClure v. Great Western Accident Association, 141 Iowa 350, 118 N.W. 271.

In Grand Fraternity v. Melton, supra, there was involved the exception in the insurance certificate rendering it void in case of self destruction by insured while "Sane or Insane," and there Mr. Justice Brown held:

"When the plaintiff proved that J.H. Melton had died, she established a `prima facie' right to recover. The burden was upon the Fraternity to prove that Melton shot himself and that he did it intentionally."

So, in this case, the burden was upon the insurer to establish, not only that the insured died by the hands of the beneficiary, but that he died at her hands under such circumstances as not to constitute an accident.

This brings us to the consideration of what the parties had in mind by the expression "Except by Accident," as used in the clause on which the defense rests. There occurs no expression of limitation to the term "Except by Accident," in the clause under consideration. Accident as here used will therefore be considered according to the general acceptation and use of the term. When so considered, it means the happening of an event not to be expected or anticipated in the light of common experiences and of the existing circumstances. When used in an insurance contract it means the happening of an event, unexpectedly taking place, and not according to the usual course of things, or not as expected. The happening of an unusual event, if caused through human agency, occurring without intention on the part of the person affected by such event. Corpus Juris, Vol. 1, Pages 425-426; Bryant v. Continental Casualty Company, 107 Tex. 582,182 S.W. 673.

Now, applying the rule by which we must be governed in considering an agreed statement, and keeping in mind that the burden of proof is upon the insurer to establish that the killing occurred under circumstances not constituting an accident, as that term is used in the excepting clause of its contract, and as well the meaning of the term "accident" when employed in its general sense, and its customary use, we come now to consider the agreed statement as made by the parties upon which the case was tried and is now properly before us, for the purpose of determining whether the insurer in this case, by its agreement, has discharged the burden imposed upon it in establishing facts from which it must follow, as a matter of law, that it was entitled to a judgment; for if the facts as agreed upon do not necessarily, as a matter of law, compel a judgment in its favor, the beneficiary, who under the agreed statement has made a prima facie case, must recover. 38 Cyc. 1934; Boston v. Brooks,187 Mass. 286, 73 N.E. 206; Ozark Plateau Land Co. v. Hays, 105 Mo., 103, 16 S.W. 957.

To establish that the killing, though by the beneficiary, was not an accident, it must show that the assured made an assault upon the beneficiary, or that his conduct toward the beneficiary at the time he was killed, coupled with his conduct just prior to such time, was such that he must have known, or at least must have anticipated that by his conduct toward the beneficiary she would in all probability kill him. Lovelace v. Traveler's Protective Assn., 126 Mo., 104, 28 S.W. 877; Union Casualty Surety Company v. Harroll, 98 Tenn. 581, 40 S.W. 1080.

The agreed statement establishes that the benefit certificate sued upon had been properly issued and delivered; that all assessments had been paid, and the assured was in good standing when he died. It further establishes that he died by the hands of the beneficiary; that the beneficiary killed the assured, believing that he intended to make an attack upon her, which, viewed from her standpoint, caused her to have a reasonable expectation or fear of death or serious bodily injuries. It establishes that the two had had a family quarrel in the morning, and another just before noon, but it does not appear that either was at all serious or threatening, and we are not permitted to infer that they were. It shows that at the time of the fatal shot, the insured had approached the house, his own home, and that he was angry and swearing, but it does not show that he was swearing at the beneficiary. It shows that he had an axe in his hands, holding the handle of the same near the blade of the axe, but it does not show that at any time he made any character of demonstration, or threat, to do the beneficiary violence with the axe; that, under the circumstances, the beneficiary, invoking, according to the agreed facts, the rule of appearances of danger, as viewed from her standpoint, shot and killed assured with a pistol; but it does not show, and we may not infer, that the insured knew that she had a pistol or was armed at all. This constitutes all of the material facts embodied in the agreement.

The fact that the agreement shows that the beneficiary acted in self defense, upon appearance of danger, as viewed from her standpoint, does not at all establish that deceased intended to assault or do her harm, for she may have so believed, and yet his intentions and purposes may have been perfectly innocent. Had the beneficiary been upon trial for an unlawful killing, it would have been incumbent upon the trial court to have instructed the jury, if, as viewed from her standpoint, she reasonably believed that it was the purpose of deceased to attack her, she would have been justified as in self defense, and this though deceased's acts and purposes toward her may have been innocent, and though in fact there was no real danger. The fact that it is agreed she so believed from her standpoint does not establish, when viewing the transaction from his standpoint, as we must here do, that he so intended, or anticipated, that she would so believe. The agreement, therefore, that she so acted does not establish, nor does it raise a presumption that the insured intended by his conduct to alarm her to the extent that she would kill him, or to cause him to anticipate that she would probably kill him. The killing of the husband by the wife is not the usual and expected thing to happen simply because there has been a family quarrel, or because the one happens to be angry and swearing. It is going quite too far to say that a husband, in his own home, because there has been a family quarrel, and because he is angry and swearing, and because he is holding an axe in his hand by his side, must expect or anticipate that his wife would likely slay him.

The agreed statement establishing a prima facie case in favor of the plaintiff in error, as the beneficiary in the certificate, and failing, as we believe, to establish, as a matter of law, that the judgment arising from such facts must necessarily have been for the defendant in error, it follows that the judgment of the Court of Civil Appeals, and of the District Court, must be reversed, and judgment here rendered in favor of plaintiff in error, Mrs. Gladys Hutcherson, for the sum of Fifteen Hundred ($1500.00) Dollars, together with interest thereon at the legal rate from the date of judgment of District Court, and for all costs which have been incurred because of this litigation, and it is accordingly so ordered.

Reversed and rendered for plaintiff in error.