*652On Rehearing.
LOONEY, Justice.In the original opinion, we discussed the question of variance presented and, for reasons stated, held that no variance existed, and in this connection said that, because of certain admissions made in its pleadings, defendant in error was in no position to deny that the policy sued upon was its contract; calling attention to two places in its answer admitting its assumption of the contract, first in a special exception, and again in a special plea, seeking to avoid payment of attorney fees, alleging specifically that, while the policy was issued by International Travelers Assurance Company, defendant in error had reinsured the risk, “assumed and bound itself to pay and discharge all lia-, bility of the International Travelers Assurance Company under the policy attempted to be sued upon, and/or -any other policy written by the International Travelers Association.”
In its motion for rehearing, defendant in error calls our attention to the fact that it filed an amended answer, on which the trial was had, omitting the special exception referred to; hence we are requested to so state and show that the admission, if it be an admission, was made only in its amended answer. We make the correction, but think it clear that in its amended answer such an admission was made as to obviate the necessity of further proof on the issue — that is, an adniission that the contract sued upon had been assumed by it.
Referring to the testimony of Mrs. McVeigh, we stated that, “She testified further, to the effect that, her husband was in good health prior to the fall.” Defendant in error objects to this statement, because not warranted by the facts. The excerpt quoted and objected to is not all that was stated in that connection; we said, “She (Mrs. McVeigh) 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.” After stating the testimony at length, we also stated on this point that, “The foregoing lay and expert evidence tends to show that, prior to being injured by the fall, 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.”
It is not every ailment, indisposition, or imperfection that renders one of unsound health. There must be a material departure from .sound health and, whether this is true or not is a question of fact to be determined by the jury, and not one of law to be determined by the court. In the instant case, the 'only afflictions this man had prior to the accident were indigestion for which he took soda, and constipation for which he took laxatives, generally considered common, and ordinarily negligible, afflictions of mankind; the only, other indication that this man was not in sound health was the fact that, after the accident, the operation disclosed a ruptured appendix. However, there, is testimony tending to show that the violent condition of the appendix could have arisen between the time of the fall and operation, there being no evidence that he (Mr. McVeigh) had suffered any pain, indicative of an appendix trouble prior to the fall, or that, if it existed at all, that it was dormant and inactive. See Hines v. New England Casualty Co., 172 N.C. 225, 90 S.E. 131, L.R.A.1917B, 744, and annotations at pages 747, 749.
We also stated in the majority opinion that Dr. Lee, assisted by Dr. Lott, operated upon Mr. McVeigh for appendicitis. The record discloses that the converse is true —that is, Dr. Lott operated, assisted by Dr. Lee. Defendant in error deems a correction of this matter material, and accordingly the same is made.
At page 5 of our opinion, 101 S.W.(2d) 646, propounding the question about to be considered, among other things, we said, “Did it [meaning the evidence] raise more than a mere surmise, suspicion, or probability that the death, of Townsend A. McVeigh resulted,” etc. Inadvertently, we used the word “probability” instead of “possibility,” and, our attention being called to the matter in the motion for rehearing, the opinion will be corrected accordingly.
The trial court having instructed a verdict for defendant in error, in order to properly determine the correctness, whether or not, of such action, necessarily, we had to review the testimony of witnesses; quoting at places the language used and at other places stating our conclusion as *653to the substance and meaning of the testimony. In the motion for rehearing, counsel for defendant in error say, “At page eight of the majority opinion [101 S.W.(2d) 647], it is stated that the witness, Dr. Lee, testified that the fall would impose enough pressure to aggravate that condition (referring to the chronic inflammation of the appendix).” Objection is urged to the above statement, counsel for defendant in error say that, “In fact, the witness testified: Q. Alright, what reasonable effect would such a fall have upon this? A. If enough pressure would be set up, it is possible that it could aggravate it.” The objection is that, “Manifestly, the statement in the majority opinion is not warranted by the witness’ testimony, the witness not having testified that the fall would impose enough pressure to aggravate that condition, * * * but that it is possible that it could have aggravated it,” therefore, we are requested to withdraw the statement.
Dr. Lee was asked quite a number of questions and gave answers of different shades of meaning, as to the effect the fall would likely have upon the appendix, in view, as the witness testified, of the probability that there existed a “little chronic inflammation,” due to the presence of the fecalith in the appendix, and, in addition to questions and answers of the witness, quoted in the motion for rehearing, he was asked:
“I wish you would explain to the court and jury how pressure of a man’s falling on his back could strike and affect his appendix? A. 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.
“Q. Well, I will ask you to state whether or not that is a natural thing to expect a fall of that character, whether or not you would naturally expect pressure to be produced on the right side of a man’s body? A. Well, you would expect the same amount of pressure to be produced over all the inside of that man’s body.”
Construing the testimony of this witness most favorably to plaintiff in error, we think the statement we made was warranted, therefore will not be withdrawn.
In this same connection, and following immediately, Dr. Lee was asked: ■
“Q. Doctor, state whether or not, please, the appendix would have to be ruptured immediately after such fall? A. I don’t think it would.
“Q. How long does it usually take for an appendix to rupture following such an occasion ?”
At this juncture, there were several objections and rulings, after which the question was repeated, as follows:
“Q. Well, an appendix such as this one you saw out there in Mr. McVeigh’s body, I will ask you to state whether or not that was a ruptured appendix when you saw it ? A. It was.
“Q. How long would you reasonably expect it to take for such an appendix to rupture? What is the length of time it would take? A. An appendix can rupture in a period of a very few hours, or it can go for several days, depending entirely upon the type of organism and the type of appendix you have.”
With reference to this phase of Dr. Lee’s testimony, we quoted him as saying, in substance that, “Under such circumstances, (the circumstances in regard to which the witness had just- been interrogated), an appendix can rupture in a period of a very few hours or can go for several days, depending entirely upon the type of appendix.” Counsel for defendant in error criticizes our statement, saying that, “Clearly, there is no justification for the court’s saying that ‘under such circumstances’ the witness testified that the appendix can rapture, etc. The witness’ answer, as-clearly shown by the statement of facts, was an abstract comment, and was not connected with any set of circumstances. The use of the phrase ‘under such circumstances’ is therefore misleading and not in accordance with the facts, as shown by the statement of facts * * ⅜ ” ; therefore request is made that the .statement objected to be withdrawn.
We think it perfectly obvious that the testimony of Dr. Lee referred to the case at hand, and not to an imagined or hypothetical case, was not an abstract comment, but connected directly and immediately with the facts and circumstances in regard to which the witness had just been interrogated; hence the statement being authorized will be permitted to stand.
Dr. Goforth, having testified as to the ruptured condition of the appendix after its removal, was asked a lengthy hypothet*654ical question and, after many objections and rulings, answered that, in his opinion, there could be a reasonable connection between the fall and the condition of the appendix as he found it (stating his reasons, appearing later). We quoted Dr. Goforth as testifying to the effect that, 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, etc. Objection to our statement, counsel for defendant in error sets out the testimony of the witness, as follows: “In the event that the appendix was not inflamed at the time the patient fell, the fall, according to my opinion, could do that, I don’t believe that the fall. could directly — I mean by the word ‘directly,’ I don’t believe that the fall could transfer injury from the outside directly to the appendix. * * * ” The quotation ends in the middle of the sentence; completing it, the witness said, “but indirectly a fall would, at the time of the fall, I think, very definitely increase materially 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. I think such fall would very definitely aggravate the condition.” Considering the testimony of this witness as a whole, and giving to it a construction favorable to plaintiff in error, we do not think we misstated the meaning and effect of the testimony; therefore will permit the language to remain as written.
In the course of the majority opinion, we said, “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.” We then set out pertinent portions of the pleadings and a lengthy statement of the evidence, reaching the conclusion that, upon the whole, the evidence raised an issue that would have justified the'jury in finding that the death of Mr. McVeigh was affected directly, independently, and exclusively of all other causes through accidental means, within the terms of the policy fairly and reasonably construed
Counsel for defendant in error say that, throughout the trial below, plaintiff in error made an effort to show that her husband sustained traumatic injury to his appendix, resulting in peritonitis, and. that there was not the least suggestion by any witness that peritonitis was probably caused by some injury to the peritoneum, other than to the appendix; then counsel say, “How this court can say that the evidence suggests the probability that McVeigh’s viscera was sufficiently involved as to produce acute peritonitis of a gener- . al nature” was beyond their comprehension, charging the majority with theorizing on issues not raised by evidence.
It is obvious, we think, that counsel for both parties paramounted the theory that the injury causing McVeigh’s death was simply an appendix involvement, but, as before stated, we think both pleading and evidence not only justified that theory, but also presented a larger question, certainly in view of the. evidence tending to show that, prior to the fall (aside from attacks of indigestion and constipation, for which, simple remedies were taken), McVeigh was in good health, that no other affliction, had manifested itself, indicating that, even if his appendix was at the time inflamed, due to the probable presence of the feca-lith, the inflammation was not violent but in a dormant condition.
Certainly, counsel do not insist that this, court, in reviewing the action of the trial court, is manacled to an erroneous view or theory of the case that caused the rendition of an erroneous judgment. It is quite true that we found from facts another theory, but in doing so we were not theorizing merely — that is, groping outside the-record for a theory, as the criticism of counsel would imply. — but theorizing within the domain of both pleading and proof., The question presented to us was not whether the theory held by counsel for either party Qr the trial court was correct, but whether there was evidence legally sufficient to have carried the case to the jury on the decisive issue — that is, whether the death of McVeigh was affected directly, independently, and exclusively of all other causes, through means of the accidental fall, and not simply whether peritonitis resulted from a ruptured appendix..
Speaking of the combined effect of accident and disease, the doctrine is. stated in. 1 CJ. 452, 453, § 127 (c), that, *655“The exception operates to relieve the insurer from liability where the injury and an existing bodily infirmity concur and cooperate to produce the disability or death; but the tendency of the courts, under the settled rules of construction applicable to insurance contracts, is to interpret the clause in a manner favorable to the insured, and the insurer is accordingly held liable where the accident can be considered as the proximate cause of death, although disease may have been present as a secondary cause, or where the death is the reasonable and natural consequence of the injury, although disease may have supervened, or where the accident is the true cause of death or injury and the disease but the occasion. So also if death results from the accident, the fact that but for weakness or infirmities produced by former illness or disease it would not have been fatal will not prevent a recovery.” Also see Ætna Life Ins. Co. v. Hicks, 23 Tex.Civ.App. 74, 56 S.W. 87 (writ denied).
We think the case should have been submitted to the jury under the doctrine just quoted, and, seeing no reason to change our decision, defendant in error’s motion for rehearing is overruled.
Overruled.
BOND, J., dissents.