McVeigh v. International Travelers Assur. Co. , 101 S.W.2d 644 ( 1936 )

LOONEY, Justice.

Mrs. Bessie McVeigh, widow of Townsend A. McVeigh, sued the International Travelers Assurance Company to recover on an accident policy insuring the deceased, alleging, among other things: “That heretofore, towit, on or about the 17th day of April, 1932, the said Townsend A. McVeigh met with an accident, in that he accidentally fell in the bathroom of his home in the City of Dallas, Texas, as hereinafter more fully alleged, whereby he sustained serious injuries to his abdomen, the organs of the abdominal cavity and to his spine, which injuries within ninety days of said accident, to wit, on or about the 4th day of May, 1932, resulted fatally to the said Townsend A. McVeigh directly, independently and exclusively of all other causes. ■ * * ⅜ that on or about Sunday night, April 17th, 1932, while at his said home, taking a shower bath in the bath tub and while standing in the bath tub the said Townsend McVeigh, now deceased, accidentally slipped and fell from the bath tub with great force and violence backward to the tile floor below, striking the floor with his head, back and abdomen and did then and there injure and rupture his appendix, severely damaging,, aggravating and injuring his appendix, causing the same to rupture and burst, which in turn produced a condition in the said Townsend A. McVeigh's body, known as peritonitis; that plaintiff was in another room in said house, and, hearing the impact of said fall rushed to her husband’s assistance and found him on the bath room floor in a helpless position, unable to rise; that plaintiff’s said husband did then and there immediately suffer pain in his back, side and abdomen; that he refused to eat, and suffered continuous pain until the following Wednesday, April 20, 1932, when he was taken violently ill; that he was immediately taken to a hospital where he was operated upon on said date for traumatic appendicitis from the natural effects of which he died on May 4, 1932, and which was the direct and natural cause of his death.”

The policy was alleged to have been executed by defendant, International Travelers Assurance Company, was attached to plaintiff’s petition as an exhibit, but purportedly was executed by International Travelers Association; however, no plea of non est factum was filed by the defendant. The insuring clause of the policy is against “loss resulting from bodily injuries effected directly, independently and exclusively, of all other causes through accidental means.” At the conclusion of plaintiff’s evidence, defendant moved for a peremptory instruction, which was granted, judgment thereon was entered that plaintiff take nothing, from which she appealed.

The first question presented is this: Was there a fatal variance, between allegation and proof? The policy alleged to have been executed by the defendant, attached as an exhibit to plaintiff’s petition, and introduced in evidence, without objection, purportedly was executed, not by defendant, International ' Travelers Assurance Company, but by the International Travelers Association.

The doctrine seems to be well settled that, in the absence of a plea of non est factum, an instrument upon which a pleading is based, alleged to have been executed by the party sought to be held, is admissible in evidence without proof of its execution, and is binding on such party, although upon its face the instrument purports to have been executed by another. See Bradford v. Taylor, 61 Tex. 508; City Water Works v. White, 61 Tex. 536, 539; Harris v. Wheeler (Tex.Civ.App.) 255 S.W. 206, 209; Thomason v. Berry (Tex.Com.App.) 276 S.W. 185, 186.

In City Water Works v. White, supra, speaking for the Supreme Court, Judge Stayton said: “That the instrument is ambiguous, and does not clearly purport to be the act of the defendant, does not render it any the less an ‘instrument in writing upon which any pleading is founded in whole or in part, and charged to have been executed by him (the defendant) or by his authority.’ In a number of cases in which the instrument on its face did not clearly appear to be the act of the person who sought to show that it was not executed by him or by his authority, it has been held that the person setting up such defense must do so by an answer verified by his affidavit. Drew v. Harrison, 12 Tex. [279] 280; Reid v. Reid, 11 Tex. [585] 591; Persons v. Frost & Co., 25 Tex. Supp. [129] 130; Prince v. Thompson, 21 Tex. 480; Sessums v. Henry, 38 Tex. [37] 41; Ferguson v. Wood, 23 Tex. 177; Lewis v. Lowery, 31 Tex. 663; May v. Pollard, 28 Tex. [677] 678. If the statute in terms referred only to such instruments as on their face purport to be the act of the person by whom or by whose authority such instruments are alleged to have been executed, then a different rule might be applied. * * * It may be that the statute which requires the plea by which the execution of an instrument sued on is put in issue to be verified by affidavit, in reason ought to apply only to such instruments as on their face clearly import to be the act of the party; but this was a matter for the consideration of the legislature, and not for the judiciary.”

As .the policy sued upon was attached as an exhibit to plaintiff’s petition, we do not think a variance between allegation and proof could exist. Longley v. Caruthers, 64 Tex. 287, 288; Varn v. Arnold Hat Co. (Tex.Civ.App.) 124 S.W. 693, 694; Abilene, etc., Co. v. Southwestern, etc., Co. (Tex.Civ.App.) 185 S.W. 356, 362; Freiberg, etc., v. Magale, 70 Tex. 116, 7 S.W. 684; Beham v. Ghio, 75 Tex. 87, 12 S.W. 996.

In Longley v. Caruthers, supra, Chief Justice Willie, speaking for the Supreme Court, said: “The instrument sued on having been attached to the petition as an exhibit, there could be no variance between the allegation and the proof when it was offered in evidence. ‘This is upon the ground that the instrument thus made a part of the petition, and filed with it for the inspection of the defendant, must control and cure any misdescription of it in the body of the petition.’ Pyron v. Grinder, 25 Tex.Supp. 159; Spencer v. McCarty, 46 Tex. 213.”

However, because of admissions in its pleading, the defendant is in no position to deny that the policy sued upon is its contract. In a special plea seeking to avoid the payment of attorney fees, defendant alleged that, while the policy was issued by the International Travelers Association, defendant had reinsured the risk “assumed and bound itself to pay and discharge all liability of the International Travelers Association under the policy attempted to be sued upon, and/or any other policy written by the International Travelers Association.”

Early in our judicial history the doctrine was announced, and has persisted, that, “If one party expressly avers or confesses a material fact omitted on the other side, the omission is cured. It may thus be made to appear from the pleadings on both sides that the plaintiff is entitled to the judgment, although his own pleading, taken by itself, is insufficient. Hence, it may be seen that, although the plaintiff committed the first fault, the defendant has remedied it, and cannot now complain. See Hill v, George, 5 Tex. [87] 89, 90.” To the same effect see Grimes v. Hagood, 19 Tex. 246, 247; Bosse v. Cadwallader, 86 Tex. 336, 24 S.W. 798; Willson v. Crawford, 61 Tex.Civ.App. 580, 130 S.W. 227, 230; Chapman v. Mooney (Tex.Civ.App.) 257 S.W. 1106, 1108; Wyatt & Wingo v. White (Tex.Com.App.) 228 S.W. 154, 156; Amsler v. Cavitt (Tex.Civ.App.) 271 S.W. 139, 140; Lafield v. Maryland Casualty Co., 119 Tex. 466, 33 S.W.(2d) 187, 188; Caulk v. Anderson, 120 Tex. 253, 37 S.W.(2d) 1008.

For reasons stated, we fail to find the existence of a variance between pleading and proof, therefore hold that the court erred in directing a verdict on the assumption, if it did assume, that a fatal variance existed.

The next question presented is this: ' Considering the evidence in the light most favorable to plaintiff, and disregarding all conflicts and contradictions, did it raise more that} a mere surmise, suspicion, or possibility that the death of Townsend A. McVeigh resulted from the bodily injuries affected directly, independently, and exclusively of all other causes through the accidental means shown?

A reviewing court, in determining whether a verdict should or should not have been directed, will disregard all conflicts and contradictions that may appear, and consider the evidence in the light most favorable to the party against whom the verdict was directed; in other words, every intendment fairly deducible from the evidence will be made in favor of the losing party; indeed, it is said that a reviewing court must disregard testimony favorable to the party for whom the verdict was directed and consider only the evidence favorable to the losing party. 3 Tex. Jur. § 741, pp. 1049, 1050. On the other hand, it is equally true that it is the duty of a trial court- to instruct a verdict, though there be but slight evidence, if its probative force is so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such being in legal contemplation no evidence whatever. Joske v. Irvine, 91 Tex. 574, 582, 44 S.W. 1059.

Cases in which these opposing rules were applied are numerous, but are of no. real value as precedents, as'each was governed by its own peculiar facts; therefore, the question for our consideration is, Which of these rules is applicable here? To properly determine the question, we are compelled to review the facts at some length.

Plaintiff testified that, while her husband was taking a bath on the evening of April 17, 1932, he slipped and fell heavily from the bathtub, the noise of the impact being heard by persons in different rooms of the house; that witness rushed to the bathroom, found her husband on the floor, on his back with feet in the tub, complaining of hurts to his back and head; that she assisted him from the bathroom; that he was nervous, restless, and white during that night (Sunday), went to his office the following day; was relieved by witness about 10 o’clock in the morning; Monday night drank simply a glass of milk; rested fairly well Monday night, and, after eating some breakfast, went to the store Tuesday morning, and as usual witness relieved him about 10 or 11 o’clock; that she could tell from his looks he was not well; Tues.day night he ate a soft-boiled egg, immediately became violently ill; after drinking some Pluto water, complained of pains in his stomach and vomited; ate some breakfast Wednesday morning, went to his place of business, was relieved by witness as usual early in the forenoon, and at this time deceased was pale, hot, his shirt was wet, and he was doubled over a chair, and she took him home about 2 o’clock. He seemed to get easy after being put to bed, but a doctor was immediately called (Dr. Lee), who advised that assured be taken to the Saint Paul Hospital, where he was at once operated upon by Drs. Lott and Lee. Witness observed a blue spot the size of her fist on her husband’s body at the end of his spine on the lower part oí his back. She testified further to the effect that her husband was in good health prior to the fall, and had not complained of pain before the injury; that he had occasional spells of indigestion, for which he took soda, and frequently took medicine for constipation; that Dr. Hardin saw her husband at the store about noon Wednesday, at which time insured was complaining of pains in his abdomen.

Two witnesses, George Kucera and J. V. Danna, testified subtantially that they were present in the building at the time Mr. McVeigh fell, heard the noise of the fall, and Kucera testified that Mr, McVeigh, coming from the bathroom into the hall, had his hand on his side, and said he had injured it in the fall, and had hurt the back of his head. Witness saw McVeigh at breakfast, and on the street car the following morning (Monday); he moved slowly, did not sit down in the street car, but held to a strap; that night (Monday) he did not get around any better, on Wednesday moved with even more care than theretofore; and that before being injured deceased had the appearance of being in very good health.

The above, in substance, is all. the testimony of the lay or nonexpert witnesses, which, without reference to any other evidence, we think strongly tends to show that the death of the insured resulted from bodily injuries affected directly, independently, and exclusively of all other causes through means of the accidental fall.

Plaintiff also placed on the stand four doctors. Dr. Lee testified that he was called to see Mr. McVeigh the day (Wednesday afternoon) he was taken to the sanitarium ; that assured was' a very sick man, peritonitis having developed far enough to be decidedly evidenced; that an appendectomy was performed by Dr. Lott, assisted by Dr. Lee; that two or three days after the operation witness observed a bruised area on McVeigh’s back over his sacrum, two or three inches in diameter; that his appendix was found to be ruptured near the base, and had some feces, little fragments of fecal matter that had become hardened and stonelike. Based substantially upon plaintiff’s evidence as to the fall, injuries, etc., witness was asked a hypothetical question as to whether or not, in his opinion, the fall could probably have produced the ruptured appendix; answered, “It is possible that it could have had something to do with it.” Asked further," Could that reasonably have produced the condition found”? answered,“It would be hard to say that; that would have to be qualified in saying that it ‘reasonably could’, because those things are decidedly .involved — the only way I could answer that, is to say, it would be possible for it to have something to do with it.” Again, the witness answered, “I said there could possibly be a connection.” Referring to the periodical attacks of indigestion that insured had before being injured, witness was asked whether or not there was any reasonable connection between the fall and the ruptured appendix under those circumstances, answered, “Well, there would be a connection between a period of indigestion preceding his injury and the presence of the fecalith matter in his appendix,” explaining that the presence of the fecalith meant to the witness that the insured had a little chronic inflammation and that the fall would impose enough pressure to aggravate that condition. Asked to explain how the pressure of a man’s falling on his back could strike and affect his appendix, answered, the only way you could produce any trauma to the appendix would be the fact that the fluid in the intestinal tract would receive some force from this fall and the force on the fluid would be exerted against the appendix, and that the same amount of pressure would be produced over all of the inside of the ■ man’s body; that under such circumstances an appendix can rupture in a period of a very few hours, or can go for several days, depending entirely upon the type of the organism and the type of the appendix. Asked whether or not there was a chronic condition existing with reference to Mr. McVeigh’s appendix, the witness said, “Fecalith is usually present in an appendix that is chronic, that has some chronic infection, and that is a diseased part.” The witness testified further that McVeigh had no bruise of any kind on his abdomen, and that, in view of the presence of the fecalith, he probably had some chronic infection. Asked with reference to the effect of the fall, the witness answered that all he could say was that there could have been some connection between the ruptured appendix and the fall; that it was not unusual to find a rupture with fe-calith, and that a strong purgative, such as Pluto water, would aggravate the infection.

Dr. John L. Goforth, pathologist at Saint Paul’s Hospital, examined the appendix after it was removed, testifying from a memorandum made at the time, said “that the appendix was acutely inflamed, the entire organ was inflamed, that near the tip of the organ there was present near or in the lumen, or the canal of the-appendix, a fecalith; that the wall of the appendix in that part was gangrenous and a rupture had occurred, the diagnosis being acute suppurated appendix, which was gangrenous, with perforations.” Based upon the history of the case, including the circumstance of the fall on the tile floor, witness was asked his opinion as to whether or not there was any reasonable connection between the fall and the condition of the appendix as he found it; answered, “It is very difficult to answer that question without stating first some physical assumptions or some physical qualifications which would make an answer possible.” Then asked, if he might answer the question on that basis, the question being repeated, answered, “I think there could be,” stating that the condition of the appendix revealed the presence of fecalith in the canal, which undoubtedly had been there for sometime. If the appendix was not inflamed at the time the' patient fell, the fall, in his opinion, would do that, not directly — that is, the fall would not transfer injury from the outside directly to the appendix — but indirectly, a fall would “very definitely increase momentarily the intra-abdominal pressure and that would result in somewhat of a squeeze of all of the abdominal organs in which the appendix would participate; that might initiate an infection in the appendix wall, at the site of the fecalith in the event the appendix was already inflamed at the time of the fall”; that it would very definitely aggravate the condition; that, in his opinion, the fecalith was directly responsible for the perforations of the appendix; that an appendix in that condition cannot be regarded as normal. Asked “if McVeigh had not had any pain in the region of his appendix before the fall, what would be his opinion as to whether or not fecalith was existent prior to the injury,” answered, “I would conclude that the fecalith was there prior to injury regardless of whether or not he had pain, because it takes a considerable length of time for a fecalith to form” ; did not think it could form in two or three or four days, but would take about six months; that, when an appendix becomes inflamed, rupture can ensue within as short a period as twelve hours or as long a period as four or five or six days, the average being from four to five days; that on examining the appendix he found no evidence of trauma.

Dr. W. A. Stiles, who never saw deceased either dead or alive, was asked a hypothetical question, based upon the facts of the case, as follows: “I will ask you to state, Doctor, whether or not, in your opinion, there is any reasonable connection between the fall that I have just described to you and the ruptured appendix?” answered, “I think there could be a connection between the fall and the ruptured appendix, I will put it that way.” He further said that, “Due to the increased abdominal pressure, which apparently was a pathological appendix, I think the thing could have caused increased pressure which could have caused the rupture.” He further stated, “I should think the rupture would have taken place immediately, when he fell, if the appendix was diseased and about to rupture,” and further, “The fall could have aggravated the inflammation in the appendix due to the fecalith being there — pressure might have.”

Dr. Fred Wyatt, who never saw deceased living or dead, testified that appendicitis can be brought about by violence or trauma. Based upon the facts, the doctor was asked the hypothetical question whether or not the fecalith concretion which was found in the appendix could have gotten into the appendix by the fall, answered that it could, and testified further that appendicitis is an inflammation or infection in the appendix, followed by pain.

Asked how violence could effect the appendix, answered, “Well, that applies to any part' of the intestinal tract. You can get a severe mashing on the abdominal walls which can injure the gut or you can get a twisting of the appendix or any of the guts where they twist on themselves and the blood supply is cut off, either gradually or suddenly, and when that is cut off 'the intestinal wall dies within a few hours or within a few days, depending on how gradual that supply is cut off, and that the intestinal wall breaks down just like an inner tube, and when it does, it sets up an inflammation which develops into peritonitis; or, if you have had a fall from a height or a fall where the abdominal content is suddenly thrown down it can tear the ligaments that hold up that part and cause it to become in a crooked or careened position, and if it is twisted of itself that wall can be broken down and ruptured.”

The witness stated his reasons for the conclusion as follows: “Well, the opening' of the appendix is into the gut proper and it contains the fecal matter. It would probably work in and out, the facalith, but whenever you get a sufficient fall where it increased the amount of pressure in the abdominal cavity, and especially inside the gut, it pushes the body front and causes the sudden j erk, everything would go down to the lower levels of the intestines. You might' compare it to a tube that has an outlet and taking a portion and push it down, whatever is in it is going to go into that outlet, if it is small enough. I don’t see why, because of the force of that fall, you couldn’t push that fecal matter into the appendix, as to concretions that is thrown off from the lining of the intestines and the calcium makes it hard — I don’t know the size of it, but it is possible to get in there.”

Asked as to the reasonable effect that might be expected to McVeigh’s stomach from the fall, answered, “All I can state is what may be possible to happen and any type of a fall severe enough to jerk a man’s feet from him and let him down suddenly; you may have a telescoping of one gut on another or you may have a twisting of one gut on another which will cause a strangulation or cutting off of circulation. You may have a hernia or a rupture. You may have a twisting or kinking of the gut. Anything may happen if it happens to get the intestinal organs in that condition, or you may get it. with any of those conditions.”

The foregoing lay and expert evidence tends to show that, prior to being in jured by the fall, Mr. McVeigh was in good health, as that term is known to the law of insurance, but that, after the fall and resultant injuries, was never well, dying a few days later. The description of the fall bespeaks its own severity and the probable resultant injuries to the body. Peritonitis was very much in evidence on the third day after .the fall, was so threatening as to require an immediate operation, which disclosed a ruptured appendix. The peritoneum is the membrane lining the abdominal cavity, investing its viscera, and peritonitis is an inflammation of the peritoneum, either acute or chronic and either local or general in nature. The .evidence, we think, suggests the probability that Mr. McVeigh’s viscera was sufficiently involved as to produce acute peritonitis of a general nature, although the most prominent manifestation was the injured appendix.

Defendant, in our opinion, unduly narrows the case by treating the injury resulting from the fall as simply an appendix involvement. Both pleadings and proof present the probability of the existence of a more extended injury involving the entire visceral cavity. Plaintiff alleged that the deceased sustained injuries to his abdomen, organs of his abdominal cavity, and to his spine. One of the experts gave testimony to the effect that such a fall would increase the intraabdominal pressure and result in a squeeze of all abdominal organs, in which the appendix would participate. Speaking of the fall, another said that one could get a twisting of the appeildix or any of the guts and that, when they twist and the blood supply is cut off, either gradually or suddenly, the intestinal wall would die within a few hours or days, depending on how gradually the blood supply was cut off, and that inflammation would set up, developing peritonitis. Another expert said that the only way to produce trauma to the appendix would be from the force the fluid in the intestinal tract would receive from the fall, and that such force would be exerted against the appendix, and that the same amount of pressure would be produced over all the inside of the man’s body; that the appendix would not have to be ruptured immediately, but could occur in a few hours or days, depending entirely upon the type of the organism and type of the appendix.

Doubtless, few people are immune from pre-existing tendencies or incipient disease that remain quiescent and dormant until aroused by a physical injury or shock, lowering resistence, and when thus aroused, may -contribute more or less to suffering or a fatal termination, yet fall far short of being either the sole or a materially contributing cause of the suffering or death.

Upon the whole, we think the evidence raised the issue, and would have justified the jury in finding that the death of Mr. McVeigh was effected directly, independently, and exclusively of all other causes through accidental means, within the terms of the policy, fairly and reasonably interpreted. Therefore hold that the court below erred in directing a verdict for defendant and in rendering judgment accordingly; hence reverse the judgment and remand .the cause for further proceedings:

Reversed and remanded.