Releford v. Reserve Life Insurance Company , 154 Tex. 228 ( 1955 )


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  • 276 S.W.2d 517 (1955)

    Velma RELEFORD, as Next Friend to James Fay Releford and Mary Helen Releford, Minors, Petitioners,
    v.
    RESERVE LIFE INSURANCE COMPANY, Respondent.

    No. A-5084.

    Supreme Court of Texas.

    March 16, 1955.

    *518 Harkness & Friedman, Texarkana, for petitioners.

    Atchley, Vance & Hubbard, Texarkana, for respondent.

    PER CURIAM.

    The petitioner, suing as next friend for her minor children, James Fay Releford and Mary Helen Releford, recovered a judgment against respondent for the sum of $760, that sum representing a $500 benefit under a provision in respondent's insurance policy insuring Floyd Releford, petitioner's husband, against loss of life "resulting from accidental bodily injury", plus statutory penalty and attorney's fees. Floyd Releford was killed by petitioner, who was not named as a beneficiary in the policy, under circumstances detailed in an unpublished opinion of the Court of Civil Appeals.

    Although the amount in controversy is within the jurisdiction of the County Court, we take jurisdiction of the case because we have concluded that the holding of the Court of Civil Appeals is in conflict with the prior decision of this Court in Hutcherson v. Sovereign Camp, W.O.W. 112 Tex. 551, 251 S.W. 491, the two decisions being "``so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.'" Dockum v. Mercury Ins. Co., 134 Tex. 437, 135 S.W.2d 700, 701.

    In the Hutcherson case [112 Tex. 551, 251 S.W. 493] this Court said that whether "the assured made an assault upon the beneficiary," or whether "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" was a fact question. In this case the Court of Civil Appeals has held as a matter of law, and in the face of a contrary fact finding by the jury, that the assured was making an unlawful attack upon Velma Releford and has reversed the judgment of the trial court, based on the finding of the jury, and has rendered judgment for the respondent. In this we hold the Court of Civil Appeals erred.

    In reaching its conclusion the Court seems to have given controlling weight to its finding that "viewed from the standpoint of Velma Releford" the deceased was making an unlawful assault upon her and she was acting "in her own selfdefense." As stated in the Hutcherson case, 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 insured. 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; if from his viewpoint his conduct was not such as to cause him reasonably to believe that she would probably kill him, then his death was accidental. This was the jury question under the facts of this case.

    Pursuant to the provisions of Rule 483 we reverse the judgment of the Court of Civil Appeals on the application therefor without granting the writ of error, and, because the court had before it other points of error which it did not decide, we remand the case to that court for consideration of the other points.

    We note that the Court of Civil Appeals said in its opinion that "the answer of the jury to Issue No. 1 is ``so against the great weight and preponderance of the evidence as to be clearly wrong'", and that *519 "certainly there is not sufficient evidence in this record to support the judgment of the trial court." We have carefully examined the points of error contained in appellant's brief in the Court of Civil Appeals and we find no point challenging the sufficiency of the evidence to support the jury's verdict. The court would have no authority to remand the cause on points of error raising only "no evidence" questions. Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857; Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982.

    The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court for further consideration.

Document Info

Docket Number: A-5084

Citation Numbers: 276 S.W.2d 517, 154 Tex. 228, 1955 Tex. LEXIS 536

Judges: Per Curiam

Filed Date: 3/16/1955

Precedential Status: Precedential

Modified Date: 10/19/2024

Cited By (14)

Bolstad v. Egleson , 1959 Tex. App. LEXIS 1998 ( 1959 )

Freeman v. Crown Life Insurance Co. , 1979 Tex. App. LEXIS 3476 ( 1979 )

Lamb v. Northwestern National Life Insurance , 56 Md. App. 125 ( 1983 )

Republic National Life Insurance Co. v. Heyward , 19 Tex. Sup. Ct. J. 280 ( 1976 )

Spencer v. Southland Life Insurance Company , 1960 Tex. App. LEXIS 1753 ( 1960 )

City of Houston v. Fox , 11 Tex. Sup. Ct. J. 46 ( 1967 )

Great American Reserve Insurance Co. v. Sumner , 1971 Tex. App. LEXIS 2453 ( 1971 )

Ritchie v. John Hancock Mutual Life Insurance Co. , 1975 Tex. App. LEXIS 2536 ( 1975 )

Great National Insurance Company v. Legg , 1969 Tex. App. LEXIS 2576 ( 1969 )

Guillory v. Aetna Life Insurance Co. , 1976 Tex. App. LEXIS 3181 ( 1976 )

Republic National Life Insurance Co. v. Heyward , 1978 Tex. App. LEXIS 3358 ( 1978 )

Life & Casualty Insurance Co. of Tennessee v. Martinez , 1957 Tex. App. LEXIS 2390 ( 1957 )

National Life and Accident Insurance Co. v. Knapp , 1968 Tex. App. LEXIS 2946 ( 1968 )

Heyward v. Republic National Life Insurance Co. , 1975 Tex. App. LEXIS 2988 ( 1975 )

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