Pan American Life Insurance Company Et Al v. Mrs. Elizabeth Cotton Andrews Et Vir., 161 Tex. 391

Mr. Justice Culver delivered the opinion of the Court. The petitioners’ motion for rehearing is granted. Our opinion handed down in this case on October 5, 1960, is hereby withdrawn and the following substituted therefor. Mrs. Elizabeth Cotton Andrews as guardian of a minor beneficiary, sued Pan American Life Insurance Company and Continental Assurance Company to recover double indemnity or accidental death benefits as provided in the policies issued by the respective companies on the life of Harrington G. Simmons.

The suits having been consolidated, trial was before the Court without the aid of a jury and judgment was rendered for plaintiff. The Court of Civil Appeals has affirmed. 323 S.W. 2d 287.

The double indemnity provision of the Pan American policy reads: “On receipt of due proof that the death of the Insured occurred in consequence of bodily injuries effected solely through external, violent and accidental means, of which (except in the case of drowning or of internal injuries revealed by an autopsy) there is a visible contusion or wound on the body, and that such death occurred within sixty days after such injury was sustained, and as a direct result thereof, independently of any other cause, * * * the Company will, upon surrender of the policy, in lieu of all other benefits under this policy, pay to the beneficiary or beneficiaries under this policy, subject to the change of beneficiary clause, DOUBLE THE FACE AMOUNT OF THE POLICY.” The Continental provision is substantially to the same effect as follows: “Upon receipt at its Home Office in Chicago, Illinois, of due proof that the death of the Insured has resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means and that said death occurred while said policy and this supplementary contract are in full force and within ninety (90) days and from the date of the accident causing such injuries, it will pay to the beneficiary designated in said policy a sum equal to the face amount of the policy, in addition to the amount otherwise payable under said policy. “This supplementary contract does not cover death resulting from: “(

a) Bodily injuries of which there is no visible contusion or wound on the exterior of the body, except in case of drowning or internal injuries revealed by autopsy; * * * .” We conclude that there is no evidence that the insured died in consequence of bodily injuries effected solely through external, violent and accidental means. The judgments of the trial and the Court of Civil Appeals must be reversed and here rendered in favor of petitioners. Early in the morning of December 4, 1953, a fire occurred in the building where the insured had his office.

He was observed watching the fire and seemed to be nervous and upset. On the following day after the fire, it was noticed that he walked with a limp. On the same day insured called on his family physician, Dr. Dean, who treated him for a low-grade sinus condition. He told the doctor with considerable emotion that the fire was very serious so far as he was concerned, that it had him “in a jam” because his records were practically destroyed and it was near the end of the year. Mrs. Andrews, the respondent, testified that she saw the insured on the afternoon of the day of the fire at her home.

She observed that he was favoring his right foot. On inquiry he told her that he thought he must have been hurt at the fire. He had a headache and was rubbing his head and she gave him an aspirin. She had never noticed him rubbing his head before and for that reason made inquiry. On Saturday morning following the fire he appeared to be still very nervous and upset and borrowed field glasses in an effort to see into his office.

On the following Sunday insured made several trips into his office, entering from the top from an adjoining building and was observed carrying out wire baskets that contained his papers and files. On Monday following while someone was helping him move a desk into another office he dropped the end he was carrying and complained that his arm and leg had been giving him some trouble during the last day or two. Thereafter he developed some loss of sensation in his extremities and his condition progressively deteriorated. A neurologist examined him on December 22nd and hospitalized him on the 25th.

On January 4th a neurosurgeon performed a brain operation and insured died January 7th, some 34 days after the fire. The Court of Civil Appeals’ opinion quotes much of the medical testimony in question and answer form. Dr. Dean was of the opinion that “the thing that set off the chain of reaction that produced this condition was probably ‘psychic trauma,’ ” and that “the fire produced the reaction in his mind, which is capable of producing' damage to the cells tissue not only in the brain, but other organs.” Dr.

Dorsey was of the opinion that there was a reasonable probability that the psychic trauma suffered by the insured as a result of the fire was the cause of the thrombosis. The insured was not in the building at the time of the fire. He viewed it from a safe distance. He was in no personal danger and suffered no fright. Regarding the evidence most favorable to the respondent, it must be conceded that the fire or the act of viewing the fire was but a remote cause of the insured’s death.

The psychic trauma was brought about by the anticipation on the part of the insured that records of personal property located in the building were being damaged or destroyed and by the natural concern over the loss of the contents of his office. These policies by their terms expressly exclude from coverage those bodily injuries where the external and violent means fail to exert sufficient force upon the body so as to produce outwardly visible evidence thereof except where that force has otherwise left its mark within the body and that revealed by an autopsy.

If it be said that the sight of the fire produced a nervous tension in the mind of the insured and that tension in turn resulted in psychic trauma that condition was not revealed by an autopsy. The autopsy only showed the presence of a thrombosis which the doctor testified was probably cause by the psychic trauma. We are not here concerned with the distinction made in some decisions between accidental means and the accidental death, as discussed in United States Mutual Accident Ass’n. v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60.

In that case Barry was allowed recovery for injuries received while jumping1 from a platform. Although the jumping was intentional on Barry’s part the injury was accidental within the meaning of the policy. Respondent cites three cases, Hill v. Kimball, 76 Texas 210, 13 S.W. 59; 7 L.R.A. 618; Gulf, Colorado & Santa Fe Ry Co. v. Hayter, 93 Texas 239, 54 S.W. 944; 47 L.R.A. 325; Houston Electric Co. v.

Dorsett, 145 Texas 95, 194 S.W. 2d 546, for the proposition that where physical injury results from fright or other mental shock caused by the wrongful act of another, the injured party is entitled to recover his damages and seeks to apply that doctrine to the facts of this case. We do not at all disagree with that rule. We do not agree, however, that this rule applicable in tort law is to be followed in determining the rights of parties under contractual provisions. We have found no case nor have we been cited to one that allows the terms of these policies to be construed as contended for by respondent.

Neither the fire nor the view of the fire can be said to be “accidental, external and violent,” so far as insured is concerned any more than if he had read an account of the fire in the newspaper a week later or if he had been told of the fire and the destruction of his records during his absence from the city. Surely, under a reasonable

interpretation of the contract it could not be said in those events that the insured had suffered bodily injuries as a result of external, violent and accidental means. In a recent decision, United American Ins. Co. v.

Selby, 161 Texas 162, 338 S.W. 2d 160, in enforcing a contract of insurance according to its terms we pointed out that “contracts of insurance are to be construed as other contracts and * * * all parts of the contract are to be taken together.” “We recognize the general rule that contracts of insurance are to be strictly construed in favor of the insured, but this does not affect the further general rule that contracts of insurance are to be construed as other contracts, and that all parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties.” The erm “external and violent means” connotes some physical force or impact applied to the body of the insured even though it be slight. “The term ‘violent,’ in such provision, signifies merely that a physical force, however slight, is efficient in producing the injury.” 45 C.J.S., Insurance,

section 754, p. 784. At the beginning of this

section the statement is made: “A provision of the policy, covering death or bodily injury which results solely by or through ‘external, violent, and accidental means,’ applies only where the elements of force and accident concur in effecting the injury, unless the clause is in the disjunctive, as “external, violent, or accidental” means, in which case injury from external and violent means alone is sufficient.

If, however, the cause of the injury or death can be shown to be due to accidental or unnatural means, this imports that such injury or death is due to external and violent means, and the nature and character of the injury may also be sufficient to establish that it was inflicted by external and violent means.” We will review briefly some of the cases said to bear upon the problem before us, none of which support respondent’s theory of recovery. In McGlinchey v. Fidelity and Casualty Co., 80 Me. 251, 14 Atl. 13, 6 Am. St.

Rep. 190, there is dictum to the effect that fright alone sufficient to produce death is to be considered as violent and accidental means. In that case the death was said to have been caused by overexertion and fright in trying to control runaway horses. Clearly in that case there was physical force exerted upon the deceased, but even if the dictum be accepted as correct in that case the terms of the policy are not disclosed that decision cannot even be persuasive here. Balanced off against that expression is the contrary dictum in Provident Life & Accident Ins. Co. v. Campbell, 18 Tenn.

App. 452, 79 S.W. 2d 292, namely that mental shock or disturbance is not a bodily injury within the contemplation of the insurance contract (a contract similar to the one before us). In so holding the Tennessee Court discussed and disagreed with the dictum in McGlinchey. In Pierce v. Pacific Mut. Life Ins. Co., 7 Wash. 2d 151, 109 Pac. 2d 322, by a divided court, recovery under an accident policy was allowed where the insured became frightened, thinking' that a collision between his car and another was inevitable, as a result of which it was found that he suffered a cerebral hemorrhage or stroke.

The Court held in that case that fright or mental shock unaccompanied by physical impact issufficient to constitute “accidental means” within the purport of that term as used in the policies.

It does not appear that the policies in question contained the provision, “external, violent and accidental means.” The provision as quoted in the opinion is as follows: “Against bodily injuries sustained * * * solely through accidental means * * * and resulting directly, independently and exclusively of all other causes * * * .” The decision cites in support of its holding only two tort cases from that jurisdiction that allow recovery for injuries resulting solely from fright.

Because recovery for fright is allowed in tort cases and in suits brought under workmen’s compensation law, that fact does not control or assist materially in the construction of a contract of insurance.

Certainly the plaintiff in that case could not have recovered if the policy had excluded “bodily injuries of which there is no visible contusion or wound on the exterior of the body and no internal injuries revealed by autopsy.” In every case we have found except Pierce, supra, there has been exerted on the insured some physical force such as inhalation of gas, drowning, infection from needle, sunstroke, exposure of rays or heat lamp, periostitis, sleeping on the hand, stingi of an insect falling and slipping cases, and the like. In Hanna v. Rio Grande National Life Ins. Co., Texas Civ.

App., 181 S.W. 2d 908, wr. ref, death was caused by an overdose of sulfanilamide which of course operated with physical force and impact upon the body of the deceased. We fully concur in that decision in allowing recovery of the policy. The quotation from Vance on Insurance cited therein was taken from a discussion of the proposition that, while in instances of death from poison, asphyxiation and drowning, the agent operates internally, the result is from external means.

These agents, of course, do not leave any visible contusions or other outward marks, but do bring to bear physical force upon the body and may be revealed by autopsy. Vance is further quoted in the Hanna opinion as follows: “Likewise, the term ‘violent’ as applied to cause of accidental injury, means merely that the cause is sufficient in producing a harmful result. It is not necessary that it shall be violent in the sense of breaking tissues or otherwise physically and visibly affecting the body.” Vance on Insurance, 2d Ed.,

section 258, p. 880. Cited as authority for that statement is Paul v. Traveler’s Insurance Co., 112 N.Y. 472, 20 N.E. 347, where recovery was allowed for death of the insured caused by inhalation of illuminating gas. Clearly Professor Vance is not implying here that recovery can be had for a purely mental reaction without application of some physical force.

Immediately following his quoted statement he elucidates: “* * * Thus where the insured was injured by his straining efforts to stop his horse that was running away, it was held that the cause of the injury was both external and violent, although the result was entirely internal, being probably a rupture of a blood vessel near the heart. And so it has been held that where an injury is received in attempting to lift a heavy weight, or from any other kind of overexertion, the result may be attributed to an external and violent accidental cause.” In American Accident Co. v.

Reigart, 94 Ky. 547, 23 S.W. 191, where the insured’s death was caused by eating a piece of beefsteak that accidentally passed into his windpipe choking him to death in a few moments, the company made the contention that the death was not caused by an external force. The court in allowing recovery reasoned that death was caused by violent and accidental means, even though the force was applied internally, saying that it was as much an accident as if the insured had taken poison under some misapprehension that it was harmless and that unquestionably recovery would have been allowed in that circumstance.

There was no contention that no physical force was exerted. The case of International Travelers’ Ass’n. v. Brannum, 169 S.W. 389, sheds little light on the problem. In that case the provisions of the policy were not set forth in either opinion other than to say that in case of accidental death there should be payable the sum of $5,000.00. The testimony was to the effect that the insured accidentally fell, his body striking the floor burned to death and, in coming from the bathroom, the insured had fallen and remembered nothing until he came to himself some time later.

The plaintiff pleaded that the shock and excitement caused the rupture of the blood vessel and also pleaded that the insured accidentally fell, his body striking the floor with great force causing the rupture and death. Some days later the plaintiff further pleaded that death was the direct result of both the excitement and the fall. The Court of Civil Appeals held that the apoplexy was caused by accidental means. The Supreme Court reversed and rendered, holding that all of the testimony as to any accident was hearsay and inadmissible.

The injury here was wholly and solely caused by a mental reaction and no different in all probability to what the deceased would have suffered if someone had told him about the fire on the following morning. He would still have been disturbed only and solely because of the property loss. Seemingly the intention of the parties as disclosed by the double indemnity contract was that before recovery could be had it must be determined with some degree of certainty that death resulted from an accidental injury, but here we have speculation on speculation.

It is speculated that the deceased suffered a psychic trauma and then it is speculated that the psychic trauma produced a thrombosis. The provision for autopsy is to afford the opportunity for establishing the fact that death was caused by a physical force where there was no outward manifestation on the body of that force. Otherwise no recovery could be had for an accidental death caused by taking into the body poisonous substances or for other injuries sometimes caused to internal organs of the body or by external physical force without any visible contusion or wound.

The provision for autopsy was not to set up a new category of injuries such as mental shock, but simply as a means of determining that death did result from some physical and violent force. The fact that in all the years similar limiting language has been in general use in accident policies without any authoritative application to an injury caused by purely mental processes, militates against the adoption of a contrary

interpretation here. We can see no distinction between the case at bar and a fatal attack of heart failure suffered by an insured induced by the excitement of watching a football game or a television program or in fact worry brought about by financial or domestic problems if that mental disturbance is said to have caused a thrombosis which in turn caused the death. In respondent’s supplemental brief she says that she does not agree with petitioners that “accidental means” involving mental reaction is the only presumed finding of the trial court which petitioners had the burden of overcoming.

Presumably she refers to the physical exertion expended by the insured in carrying the baskets of papers and records out of his office and the occasion when he dropped one end of the desk that he was carrying. The deceased did make some statements to Dr. Dean to the effect that on the 16th “he said he thought he had injured himself during the fire or right after the fire. He was crawling around on the building to see about his equipment and records.” There was no evidence that what he did was strenuous.

The testimony introduced by respondent shows that whatever caused his condition had its inception on the day of and the day following the fire and before there was any exertion. In the second place, while there is medical testimony by Dr. Dean that thrombosis might be congenital or it could be caused by severe exertion, or severe emotional stress and strain might have been instrumental in preipitating the thrombosis, he nowhere testifies that in his opinion exertion probably resulted in thrombosis. Dr. Dean’s testimony is based on possibilities rather than on probabilities.

On the other hand the only testimony of probative value fixing the causation was that psychic trauma probably set in motion the thrombosis that resulted in death. There were introduced in evidence two death certificates. The first one signed on the date of death showed the cause as a brain tumor .On February 18th a corrected death certificate was signed and filed by Dr. Greenwood, stating the disease or condition directly leading to death was “cerebral thrombosis, bilateral posterior due to exertion because of fire in office December 4, 1954 that injury occurred from trying to save records from burning building.

Article 4477, Rule 54a provides that a death certificate properly filed is prima facie proof of the information therein contained. The Court of Civil Appeals says that this death certificate was offered by the petitioners without any limitation whatever and therefore they are bound by its contents. From an examination of the statement of facts there seems to be some confusion. As we read the record the amended certificate was offered in vidence by the respondent; petitioners’ objection was overruled. Later, there is a statement by the petitioners to the effect that they offered both.

However, we regard this as immaterial. The probativ value of the certificate is destroyed by the positive testimony of the doctors that the thrombosis was probably caused by the mental disturbance, and by the testimony of the doctor who signed the certificate. There is no testimony that exertion produced the thrombosis. The evidence of exertion rises to no more than a scintilla. Joske v. Irvin, 91 Texas 574, 44 S.W. 1059. Dr. Greenwood who performed the operation upon the insured, recommended the autopsy and signed the amended death certificate, testified in behalf of the respondent in part as follows: “ ‘Q.

What are, in your medical opinion, the possible causes of Mr. Simmons’ thrombosis, possible causes? A. Well, there are things we consider as possible causes. Just the medical causes. “ ‘Q. Based upon the history, your examinations, your surgery, and the autopsy, what would be the possible causes of Mr. Simmons’ thrombosis? A.

I think you would have to divide it into two large groups, it could be where there was no specific cause, where it is congenital, or it could be where you have a severe exertion like at the time of the fire or severe emotional stress and strain might have been instrumental in precipitating the actual thrombosis. “ ‘Q. In your opinion, was there sufficient arteriosclerosis to have cause the thrombosis in Mr. Simmons’ case? A. I will say ordinarily not, no, sir. “ ‘Q. Doctor, do you know what caused Mr. Simmons’ thrombosis? A. No, sir. “Q.

Do you have an opinion based upon your tests, examinations, history, surgery and autopsy, as. to what possibly caused the thrombosis? A. I don’t think I can answer that definitely any more or any further than I already hame.

If it can be shown he did undergo severe exertion or extreme emotional strain or received an actual blow or injury, then those things would certainly be considered as factors in the possible precipitation of his thrombosis; other than that, we can just say it happened.’ ” The uncertainty and speculation as to the cause of the insured’s death cannot be more forcibly described than respondent does in concluding her brief.

In summing up she says: “It is true that no medical man, or any other witness, testified that the fire and resultant emotional stress an dstrain, and the removal of the debris and the setting up of a new office actually did cause the cerebral thrombosis that actually did cause the death of Harrington G. Simmons, when the fire did not have any such effect upon anyone else.

It is true, however, that, with the background and factual situation outlined above, the fire in some unexpected and unexplained way did have this effect on him and he died as a consequence of injuries inflicted by accidental means.” There being no evidence that the insured suffered death as a result of bodily injuries effected solely through external, violent or accidental means, recovery of double indemnity benefits must be denied. The judgments of both courts are reversed and judgment here rendered that respondent take nothing. Opinion delivered November 23, 1960. — 212 S.W. 630.