Standard Acc. Ins. Co. v. Cherry , 1932 Tex. App. LEXIS 366 ( 1932 )

The suit is by the appellee, the insured, to recover on an accident insurance policy issued by the appellant company containing the following provisions:

"Standard Accident Insurance Company of Detroit, Michigan, in consideration of the representations contained in the application, copy of which is indorsed herein and made a part hereof, and of the premium of $29.71, hereby insures Marion E. Cherry, hereinafter called the insured, whose occupation is truck driver — ice delivery, for the term of 12 calendar months from noon, Standard time, of the 29th day of October, 1928, against loss resulting from bodily injury, effected directly, exclusively and independently of all other causes through external, violent and accidental means except when intentionally inflicted while sane or insane, or sustained by the insured while insane, subject to all the conditions and limitations hereinafter contained, principal sum of $1,000.00; weekly indemnity $15.00.

"If such injuries shall wholly and continuously disable the insured from date of accident, from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, but within 200 weeks of date of such accident, shall result independently and exclusive of all other causes in either one of the losses enumerated below or within 90 days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss, and in addition weekly indemnity, as provided in Art. 2, to the date of death, dismemberment, or loss of sight. Only one of the payments named will be made for injury resulting from one accident.

"Weekly Indemnity. "If such injury shall not result in any of the disabilities enumerated in Art. 1, but shall directly and immediately totally and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to his occupation, the Company will pay him the weekly indemnity at the rate mentioned above ($15.00) for the entire period during which he is so disabled."

The appellee asked for indemnity at the rate of $15 a week for 32 4/7 weeks, from June 10, 1929, to January 24, 1930, and 33 3/7 weeks from September 19, 1930, to May 11, 1931. In this connection it appears that the present trial was upon agreed consolidation of two suits, one filed October 9, 1929, claiming indemnity for the 32 4/7 weeks above, and one filed at a later date claiming the indemnity for the 33 3/7 weeks above. The petition alleges the injury, occurring June 10, 1929, and cause thereof, namely: "Plaintiff alleges that he received said bodily injuries through external, violent and accidental means while in the regular performance of his duty. That while attempting to put a 200 pound block of ice in an ice box or refrigerator, and while attempting to throw the 200-pound block of ice off his back in the ice box he received an unusual jerk or strain, which happened unintentionally or unexpectedly, which tore his ligaments, nerves, blood vessels, and tissues loose in his back, shoulder, side and spine, and injured the muscles, tissues and ligaments of his back, spine, side and shoulder and other parts of his body as hereinabove set out, totally rendering him incapacitated of further performing the duties of his occupation, to-wit, that of truck driver, ice delivery, all as hereinabove set out."

The appellant answered by general denial and specially pleaded that the appellee's injury was not total and he was not prevented from attending to any and every kind of duty pertaining to his occupation, and, further, that his injury was occasioned by an automobile accident in the previous year of 1928. The appellant further pleaded in abatement that the appellee had not filed any proof of loss for the last period of injury from September 19, 1930, to May 11, 1931, in keeping with the following provisions of the policy:

"Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury.

"The Company upon receipt of such notice will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made.

"No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.

"Affirmative proof of loss must be furnished to the company at its office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable, and in case of claim for any other loss, within ninety days after the date of such loss.

"Full compliance of the insured and beneficiary with all provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect shall forfeit to the Company all right to any indemnity."

The appellee filed reply to the plea in abatement setting up both compliance with the terms of the policy and estoppel. The case was submitted to the jury on special issues whose findings of facts are: That the plaintiff received the bodily injuries sued for which were effected independently of all other causes through external, violent, and accidental means; that the injuries wholly disabled the plaintiff from performing and attending to any and every kind of duty pertaining to his occupation; that he was not injured in an automobile accident in 1928. The jury further found the amount of reasonable attorney's fees. In keeping with the verdict of the jury, the court entered judgment for the plaintiff.

The evidence goes to show that the appellee was employed by an ice company as a truck driver in the daily delivery of ice to customers. His duty was to carry ice from his truck and put it in the houses or ice boxes of his customers. The usual weight of the ice he had to carry and put in the ice boxes ranged from fifty to three hundred pounds, as the particular customer desired. The statement of the testimony of the appellee gives a clear outline of the suit. He testified, as material to state, as follows;

"I am asked to describe how I received those injuries on June 10, 1929, and in what way, and what I was doing at the time. I was carrying a 200-pound block of ice, putting it in a high ice box. I had the ice on my back and was all bent over and had to get the ice up on the edge of the ice box. When I went to throw the ice back off my back it seemed just like it tore me in two there. I had been following that occupation close to two years and had carried ice in that way before. That was a large piece of ice that I was carrying, but I have carried pieces larger than that. I have carried 300-pound blocks of ice; and have carried them on my back. I did not intend to injure myself at the time I put that ice on the box. I did not know that it would hurt me when I did that because I had been doing it that way every day. I had put 200 pounds of ice in that particular ice box every day that summer up until then, and I did not expect it would do that. I had no idea I would be injured when I put the ice in that box in that manner on that occasion. This injury happened unexpectedly. I had followed this occupation for about two years prior to the time I received this injury.

"I had been working for the Powers Ice Company for about two years at the time I claim to have received this injury. This jerk in my side occurred down there at Atchison's Grocery Store. I am about five feet, two inches tall. I am asked to illustrate by this chair here about where the open space in that box was that I had to put that ice in. It was about right here (indicating). I am asked to stand up by the side of that and see how that would come up to me. As to how far it comes, about my waistband — it comes about right there — about three inches above my waistband. The top of that chair would be about the height of the opening in the ice box; something near that. Supposing that grip there was the piece of ice that was in my truck that I was going to deliver that morning; I am asked to show the jury just how that happened and what happened. I can't show them unless I had the ice and a man here to carry it and show them, for a man can't get in a position with a grip on his back like he would have to with a 200-pound chunk of ice on his back. You have to reach back like this (indicating) with your hooks. The ice is sticking up there — a 200-pound block of ice that you are laying away over there. I come right here and catch one end right there and edge that ice like that, and then I have got to tilt it up and stand it straight up in that box like that; stand straight up with a 200-pound, straight up. That is what I did on that occasion, and that is where I broke my back down. That is the way it happened. I had been delivering ice for two years for this company; right at two years. I had been delivering to Mr. Atchison all summer up until I got hurt that summer; up until the 10th of June. I began delivering ice there to Atchison's store and putting it in that box up in the winter. It had been six or seven months or more that I had been delivering ice. That was in June, the sixth month of the year.

"When I was putting that piece of ice down there in Mr. Atchison's store that morning, as to whether or not there was anything that happened out of the ordinary except this strain or catch in my back — there was no strain or catch. It just seemed like I heard it break loose — just tear loose. There was nothing unusual or out of the ordinary other than the tearing loose or breaking loose of that place back there, whatever it was. I unloaded the ice that morning just like I had on all other mornings before that, and just like I did all around town where the boxes are up like that. I carried it the same way."

There is evidence that the appellee since his injury cannot carry the ice to the houses as required of him, and is prevented from substantially doing the duties pertaining to his occupation. The jury finding in this respect is sustained and here adopted as a fact in the case.

King, Mahaffey, Wheeler Bryson, of Texarkana, for appellant.

Wm. V. Brown, of Texarkana, for appellee.

LEVY, J. (after stating the case as above).

The point is made by appellant that to enable the insured to recover on the policy compliance was necessary with the stipulation requiring the making and furnishing to the company proofs of loss for the second period claimed in the petition of 33 3/7 weeks. It is the well-settled rule that, in order to justify a recovery under the policy, it is essential that the insured comply with the stipulations therein requiring proofs of loss to be given. In the special situation of the present case, though, there is doubt as to whether it may be said, as respects the weekly indemnity claimed, there was failure of any compliance with that part of the policy which relates to proof or loss. By the policy the appellant bound itself to make "weekly indemnity" of $15, payable presumably in weekly installments, for injury disabling the insured, resulting from the risk or accident insured against. "Notice" of "the injury" is expressly required by the policy to be given "within twenty days after the date of the accident causing such injury," and proofs of loss are expressly required to timely follow "covering the occurrence, character and extent of the loss for which claim is made." The plain object sought for is satisfactory proof of an injury in fact to the insured, and of the occurrence and the particulars or details of the accident in the first instance. The aim and purpose does not appear to further provide for separate weekly proofs of loss for each week for the entire period the insured would be disabled. Such further proof covering details or particulars of each separate week's disability would reach only to the duration of the disability and not the cause of the accident. It is believed the policy provisions reasonably point to the interpretation as requiring but one set of proofs, made in the first instance upon the happening of the accident causing the injury, and not weekly as each weekly installment becomes payable thereafter. And if such terms of the policy may be regarded as susceptible of more than one interpretation, then the construction favorable to the assured should be followed. 1 Joyce on Insurance (2d Ed.) §§ 221, 222A. In the present case it was shown that notice was promptly given on June 12th of the accident in suit occurring June 10, 1929. Proofs of loss duly followed on June 17, 1929. No complaint in this respect is here made. It further was made to appear, by the evidence in behalf of appellee, there was a continuous period of disability of the insured due to the single producing cause in suit, and the second period of 33 3/7 weeks in suit was not paid, but was in default of payment. The insured made demand of the company for payment through letter. It is believed further formal notice and proof of details or full particulars of each separate week's disability was not demanded by the provisions of the policy and was unnecessary in order to enforce default of payment. It was legally incumbent upon the insured, irrespective of preliminary proofs, to establish by competent evidence in the trial the extent and duration of this disability resulting from the alleged accident, and this burden of proof he undertook to discharge.

The point, fundamental in the case, is made by the appellant that the evidence conclusively established that the appellee did not sustain his injuries by "accidental means" within the accident policy. The facts of this case are practically the same as in the case of Standard Accident Ins. Co. v. Cherry in (Tex.Civ.App.) 40 S.W.2d 873. The parties are the same in the two cases. In that case it was held that the evidence warranted the finding that the injury to the appellee resulted through accidental means. Carrying the ice in the manner done resulted in unexpected injury, and the injury should be considered as one due to accidental means, as the majority of this court conclude, adhering to their former ruling and to the cases believed to be in point.

The writer is still of the same view, as previously outlined (Cherry Case, supra), of the facts that the bodily injury, resulting proximately and not remotely, from carrying a 200-pound block of ice, should be regarded as merely accidental in result. From a perusal of the decisions an injury through "accidental means" is the product of an intervening agency, not incident to but independent of the original act of the injured person, whether such agency be a catastrophe of nature or the act or event according to ordinary circumstances. A bodily injury in harmony with the preceding act or event is merely accidental in result.

We have considered the remaining assignments of error and think they should be overruled.

The judgment is affirmed.