* Writ of error refused April 22, 1925. *Page 247 This case is before us on motion for rehearing. The motion is granted. All former opinions are withdrawn, and this and the concurring opinion of Special Chief Justice ROGERS are substituted as the opinion of the court in this case.
Action by Mrs. Adah Melaun, widow of Fred J. Melaun, deceased, against the International Travelers' Association on an accident insurance policy issued to the deceased, in which his wife, appellee, was named as beneficiary. The case was tried before the court without a jury. From a judgment in favor of plaintiff, defendant appeals.
On the material issues in the case we make the following
Findings of Fact. The deceased, on April 16, 1922, accidentally slipped and fell on the wet and slippery concrete floor of his garage, striking his head with great force on said concrete floor, inflicting bodily injuries which directly, independently, and exclusively of all other causes, resulted in his death on May 26, 1922. About the time he received said injury, his wife, appellee herein, was confined, and soon after said confinement was compelled to undergo a serious operation, confining her to her bed for more than a month, and at the time of her husband's death she was not able physically or mentally to do anything, and continued in such condition for some time after her husband's death.
The deceased died at his home, 1920 Forrest avenue, Dallas, and the day after his death an autopsy was made upon the body of the deceased at an undertaking establishment, where the body had been taken to be prepared for burial. Dr. Marshall, the family physician, who attended the deceased, Fred J. Melaun, during his last sickness, gave as the cause of his death cerebral hemorrhage, resulting from a blow or wound on the head. The brothers or father of the deceased indicated to the doctor that they wanted an autopsy. They seemed to question the doctor's statement as to the cause of death, and to satisfy them the doctor had the autopsy made at said undertaking establishment. There is no evidence that appellee was consulted about said autopsy, or that she knew anything about it until after it was done. There were three physicians took part in said autopsy. Two of them testified on the trial without objection. The third was not called to testify.
The autopsy, as far as the record shows, had no relation to any question of insurance on the life of the deceased; in fact, we conclude from the record that neither the doctors who performed said autopsy nor the brothers or father of the deceased who suggested same knew that the deceased had any insurance. At the time of the death of her husband, appellee knew that her husband had an insurance policy, but did not know it was in force, and knew nothing about the terms of same, and never knew it was in force until the following Tuesday, the day after his burial.
On June 9th appellant furnished blanks to be used in making proof of death, one by the beneficiary, one by the undertaker, one by the person or persons who witnessed the accident, and the other by the attending physician, and also requested a full statement from the physician who was in charge when the autopsy was held, all of which was furnished appellant on June 18th. Appellant never asked for a second autopsy, and never denied liability on the ground that its representatives were not notified in time to be present and participate in the one that was held, until July 3, 1922. At the time the autopsy was had, appellee had no claim pending, and neither appellee nor any of her relatives knew she would have any claim. The failure to receive notice of said autopsy cannot be attributed to any bad faith or improper motive on the part of any one. Neither did such failure result in any injury to appellant.
Opinion. Appellant makes no question as to the sufficiency of the pleadings to raise all issues made by the evidence. By its assignments *Page 248 of error 6, 11, and 15, appellant complains of the admission in evidence of certain statements made by the deceased soon after his alleged fall and injury, or immediately after he had regained consciousness, to the effect that he slipped and fell and the back of his head struck on the concrete floor, and complained that his head hurt very badly and that he was in a dizzy condition, etc., on the ground that same was hearsay and was self-serving declarations. In our opinion, this testimony was properly admitted. It was part of the res gestæ. However, if the trial court was in error in admitting any of said statements, under the facts of this case it was harmless error and affords no reason for reversal, because legal evidence, conceded to be properly admitted — at least, not objected to by appellant — was ample to support the finding of the court that the deceased did accidentally fall, striking his head on said concrete floor, seriously injuring his head, from the effects of which he died. This being true, and the case having been tried before the court, the presumption is that the trial court based his judgment on such legal, competent evidence, and discarded all illegal evidence, if there was any admitted. Appellant's sixth, eleventh, and fifteenth assignments are overruled. Gainesville Water Co. v. City of Gainesville, 57 Tex. Civ. App. 257, 122 S.W. 959; Morris v. Moon (Tex.Civ.App.) 120 S.W. 1063.
In its assignments 7, 9, and 10, appellant complains of the admission of evidence to the effect that at the time of the death of her husband, and at the time the autopsy was performed, appellee was not physically or mentally capable of doing anything, upon the ground that said evidence was irrelevant and immaterial. If appellee was in such condition physically and mentally that she was incapable of doing anything, then the autopsy was performed without her consent and she was not responsible for its having been performed, and the doing of something to which she did not consent and over which she had no control could not affect her rights. This evidence was admissible. Appellant's assignments 7, 9, and 10 are overruled. O'Brion v. Columbian National Life Insurance Co.,119 Me. 94, 109 A. 379, and cases cited.
In its assignment No. 8, complaint is made of the admission of the evidence of appellee to the effect that she did not know the policy was in force until after the deceased was dead and buried, etc., upon the ground that same was irrelevant and immaterial and that she was charged with knowledge of the contents of said policy; but the record discloses that the policy would not show whether the premiums had been kept paid up, and to ascertain this fact inquiry had to be made at appellant's office. This evidence was admissible to rebut any presumption of bad faith on the part of appellee, her attorney, or any of her relatives in anything they may have done or may have failed to do with reference to said autopsy. We overrule appellant's eighth assignment.
By its seventeenth assignment of error, appellant contends that there is no direct legal evidence in the record showing that said Fred J. Melaun's death was the result of injuries received through "violent, external and accidental means, independent of all other causes." The evidence is undisputed that Fred J. Melaun, prior to his injury, was a strong, healthy young man, about 30 years of age, nearly 6 feet tall and weighed about 200 pounds; that his garage had overflowed and the water had receded, leaving sediment covering the concrete floor of said garage, rendering it wet and slippery; that while his garage was in this condition — trash over it and being wet and slippery — on or about April 16, 1922, he was cleaning a large machine, while Clarence Green, a negro, was moving tools out to wash them, when Melaun's feet slipped from under him and he fell. Clarence ran to him and found him on the floor, in an unconscious condition. He was carried into the office and lay there some 30 minutes before he fully regained consciousness. He was carried home, confined to his bed for some time; then seemed to improve a little; then grew worse until he died on May 26th. The attending physician testified he died of cerebral hemorrhage, caused by a fall or blow on the head. Appellant offered no evidence in rebuttal. The evidence was ample to support the judgment of the trial court. We overrule appellant's seventeenth assignment.
Appellant's fifth assignment is as follows:
"Because the judgment is contrary to the law and the evidence in the case, in that, clause 8, article 9, of the policy held by said Fred J. Melaun provides: `The association, or its representatives, shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of the claim hereunder, and if an autopsy be made, the association shall be given timely notice thereof and the right and opportunity for its representatives to attend and participate.' And that provision 6 of article 10 of said policy is as follows: `Strict compliance on the part of the insured and the beneficiary with all provisions of this policy is a condition precedent to recovery hereunder.'
"That the uncontroverted evidence shows that the deceased, Fred J. Melaun, died on May 26, 1922, and was buried on the 29th day of May, 1922, and that an autopsy was held upon said Fred J. Melaun the day after his death, and that no timely notice or pretended timely notice of said autopsy was given to the defendant herein, so that it might have the right and opportunity for its representatives to attend and participate therein, which said failure upon the part of the plaintiff, as set forth in the above-quoted paragraph of said policy, prohibited recovery herein." *Page 249
The above clause 8 of article 9 appears as one of 17 clauses under article 9, which article is designated "Standard Provisions." Clause 7 of said article is as follows:
"Affirmative proof of loss must be furnished to the association at its said office in case of claim for loss of time from disability, within ninety-one days after the termination of the period for which the association is liable, and in case of claim for any other loss, within ninety-one days after the date of such loss."
Clause 6, above, is one of eight clauses under article 10, designated "Additional Provisions."
Insurance contracts are written by the insurer and are always to be construed against the insurer and in favor of the insured or his beneficiary. It is also true that the conditions in insurance policies, as in all other contracts, should be construed strictly against those for whose benefit they are reserved. Paul v. Travelers' Insurance Co.,112 N.Y. 472, 20 N.E. 347, 3 L.R.A. 443, 8 Am.St.Rep. 758. A clause of forfeiture is not to be strictly construed in favor of the company in such case. McFarland v. Accident Ass'n, 124 Mo. 204, 27 S.W. 436. On the contrary, while it should be given a reasonable interpretation, yet the inclination of the courts should be against the forfeiture, and if clauses of a policy are conflicting or of doubtful meaning, such conflict or doubt should be resolved in favor of the assured or his beneficiary. The latter part of clause 8 copied above, "and if an autopsy be made, the association shall be given timely notice thereof and the right and opportunity for its representative to attend and participate," evidently means that if any autopsy is made with the consent of the surviving wife, and especially when she is the sole beneficiary named in the policy. Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85,28 Am.St.Rep. 370; Lindh v. Great Northern Ry. Co., 99 Minn. 408,109 N.W. 823,7 L.R.A. (N.S.) 1018; O'Brion v. Columbian Nat. Life Ins. Co., 119 Me. 94,109 A. 379.
If it was the intention of the company, as seems to be expressed in said clause, and as is urged by appellant, that the rights of the surviving wife and beneficiary should be swept away by the unauthorized act of a third party in ordering an autopsy without her consent, then said clause, so construed, would be wholly void and unenforceable. So, in order to base any defense whatever on the nonobservance of said clause, it was incumbent upon appellant to allege and prove that said autopsy was made with the consent of appellee, and this we think appellant wholly failed to do. There is no evidence in the record that tends in any way to show that appellee was consulted about said autopsy, or that she knew anything about it until after it was done, and the circumstances tend very strongly to show affirmatively that it was done without her knowledge or consent. This was at least a question of fact for the trial court, and one the trial court could very properly resolve in favor of appellee. And from what we have said above, it necessarily follows that if appellee was in such condition physically and mentally as that she was incapable of doing anything, then any decision she might have made affecting her rights would not be binding on her and would not prejudice her rights. She had had a fearful experience in childbirth about the time her husband was injured, and then as a result of said experience had to undergo a serious operation, from the effects of which she was confined to her bed for 30 days, and, as testified by her, she was in such a serious condition that just prior to her husband's death they kept his dangerous condition from her. Then following all of these harrowing and nerve-racking experiences, and while in this weakened and nervous and prostrated condition, came the shock of her husband's death. Dr. Marshall, her physician, said she was not able physically or mentally to do anything. The evidence was ample to raise the question of fact as to whether or not she was capable of making a decision that was binding on her, and was such that the trial court could very properly resolve said question in favor of appellee.
Again, we have serious doubt if clause 8 of article 9 has any application under the facts of this case. The sense of that clause is that the company shall have the right to examine the person of the assured at any reasonable time during the pendency of a claim, "and if an autopsy be made during the pendency of a claim," to be notified and to have its representative present. At the time the autopsy in this case was made no claim had been made by appellee, no claim was pending under this policy, and neither appellee nor any representative of hers knew that any claim could be made. That matter could not be determined from the policy and other papers in the possession of appellee, and even the attorney who was called to examine said papers after the autopsy decided from his examination of said papers that no claim could be made, and did not know one could be made until the third day after the autopsy, and then learned said fact by inquiring at the home office of appellant. The clause in question evidently was intended to apply in cases where a claim against the company has been made and said claim is pending under investigation and an autopsy is decided upon by the claimant for the purpose of substantiating such claim. At least, it is very doubtful if this clause had any application to the facts of this case, and we believe it was the duty of the trial court to resolve said doubt in favor of the beneficiary of the assured.
Further, there is nothing in this record that would indicate that there was any bad *Page 250 faith on the part of any one in failing to give previous notice to appellant that an autopsy was going to be made, and appellant does not claim there was any bad faith. There is nothing to indicate that it was made for the purpose of procuring evidence to substantiate a claim against any insurance company, and appellant does not claim it was made for such purpose. There is nothing to indicate that it was not fairly made, and made by an impartial, competent physician. Appellant does not contend otherwise. It was not made by Dr. Marshall, plaintiff's family physician, but was made by Dr. James E. Tompkins, who has charge of the laboratory work at St. Paul's Sanitarium, and was made at Smith's Undertaking Company, in the presence of several other physicians. There is no evidence that appellant suffered any injury by not being notified, or that appellant would have had a representative present if it had been notified. Appellant does not so contend. The body was buried on Monday, the 29th of May. On Tuesday, May 30th, appellee's attorney learned by making inquiry at appellant's office that the policy was in force. On June 1st, but two days after the burial, appellee's counsel wrote appellant at its home office in Dallas, Tex., informing appellant of the autopsy had on Saturday. On June 9th appellant furnished blanks to be used in making proof of death, and, in addition, requested a full statement from the physician in charge when the autopsy was held. Proofs of death were made and the statement furnished. Negotiations were continued both by oral conversations and correspondence between appellee's attorney and appellant and its general attorneys, until July 9th, appellee's attorney endeavoring to ascertain whether or not appellant intended to deny liability, and especially upon the ground that they were not notified of the autopsy, and appellant evading said question until July 3d, when, for the first time, appellant denied its liability upon said ground.
The record shows that by mistake, oversight, a lack of knowledge that the policy was in force, or by reason of a combination of circumstances over which appellee had no control, the autopsy was held without notice to appellant. If appellant had notified appellee when it first learned of the autopsy, about two days after the burial, that it desired to have a representative present at an autopsy, or that it intended to rely upon a breach of clause 8, article 9, appellee could, and doubtless would, have had said body exhumed and arranged for a second autopsy, giving appellant an opportunity to participate; but appellant expressed no such desire and evaded the question of making a defense on said alleged breach, from June 1st until July 3d, and then, for the first time, denied liability on said ground. Appellee, even then, offered to have the body exhumed and arrange a second autopsy for appellant's benefit, which offer appellant refused. The policy does not make a breach of clause 8, article 9, grounds for forfeiting the policy. The provisions of this clause are on the same basis as the provisions of clause 7, providing for proof of loss, and the same rules of law applicable to a waiver of failure to furnish proof of loss are applicable to the provisions of clause 8. If there was any breach of the provisions of clause 8, article 9, such breach, we think, was waived. At least, the evidence was sufficient to raise a question of fact on this question for the trial court. We overrule appellant's fifth assignment. The following authorities, to some extent, bear upon the questions herein discussed: American Natl. Ins. Co. v. Nuckols (Tex.Civ.App.) 187 S.W. 497; Ætna Life Ins. Co. v. Robinson (Tex.Civ.App.) 262 S.W. 118; Crotty v. Continental Casualty Co.,163 Mo. App. 628, 146 S.W. 833; Wehle v. Mutual Accident Ass'n,153 N.Y. 116, 47 N.E. 35, 60 Am.St.Rep. 598; Johnson v. Bankers' Mutual Casualty Ins. Co., 129 Minn. 18, 151 N.W. 413, L.R.A. 1915D, 1199, Ann.Cas. 1916A, 154; Massachusetts Bonding Ins. Ass'n v. Duncan,166 Ky. 515, 179 S.W. 472; Loesch v. Union Casualty Co., 176 Mo. 654,75 S.W. 621; O'Brion v. Columbian Nat. Life Ins. Co., 119 Me. 94,109 A. 379.
We have carefully examined all the assignments of appellant, and we find no reversible error, and therefore overrule all assignments and affirm the judgment of the trial court.