
    Elizabeth HERRING v. FEDERAL LIFE INS. CO.
    (No. 568-4349.)
    (Commission of Appeals of Texas, Section B.
    Feb. 17, 1926.)
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Will R. Saunders and Y. L. Shurtleif, both of Breckenridge, for. plaintiff in error.
    Goggans & Allison, of Breckenridge, W. L. Moore and B. O. Baker, both of Dallas, and C. A. Atkinson, of Chicago, Ill., for defendant in error.
   POWELL, P. J.

• The opinion of the Court of Civil Appeals in this case is reported in 269 S. W. 255. It was an action by Elizabeth Herring upon a $5,000 accident policy issued by defendant in error to her husband. She recovered upon the policy in the district court. That judgment was reversed and the cause remanded by the Court of Civil Appeals because of improper argument of counsel for Mrs. Herring before the trial jury. Both parties filed petitions for writ of error. Both were granted. We will consider first the application of the insurance company:

It is contended that the trial court should have given a peremptory instruction in the company’s favor because there is no evidence to sustain the finding of the jury that the death of Herring was due to the fact that he sustained a bodily injury through external, violent, and accidental means, which resulted, independently or exclusively of all other causes, in his death.

The verdict of the jury was sustained by the trial court and the Court of Civil Appeals. In its opinion, the latter court says:

“This case is dependent largely on the same statement of facts as cause No. 10674, Texas Employers’ Insurance Association v. Elizabeth Herring, * * * which was affirmed by this court on May 17, 1924, motion for rehearing overruled October 18, 1924. There are some differences in the evidence, which we will hereinafter note, but in the main the testimony is the same.”

We have carefully read the record, and think this statement is correct. It certainly is with reference to the external and accidental injury Herring received at the well. In view of what we have said in our opinion in the other case, filed contemporaneously herewith, it is not necessary for us to say anything further here. We think there is no evidence that Herring received a bodily injury through external, accidental, and violent means.

Since the case must be reversed anyway, we express no opinion as to whether or not there is any evidence that the injury pleaded, even if proved, independently or exclusively of all other causes, resulted in Herring’s death.

The application filed by Mrs. Herring is based upon the ruling of the Court of Civil Appeals upon improper argument of her counsel. As that question will likely not arise upon another trial, we express no opinion upon this matter. But we would suggest that counsel in arguing any case make uo attempt to get before the jury evidence which has been excluded by the court.

As already shown, we have differed with the Court of Civil Appeals wherein it held that there was evidence raising one of the essential issues in this case. But, we think the Court of Civil Appeals has entered the correct judgment in remanding the cause.

Therefore, we recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.  