Allibone v. Fidelity & Casualty Co.

• Decision Date: 26 October 1895
• Citation: 32 S.W. 569
• Parties: ALLIBONE v. FIDELITY & CASUALTY CO.
• Court: Texas Court of Appeals

Page 569

32 S.W. 569

ALLIBONE v. FIDELITY & CASUALTY CO.

Court of Civil Appeals of Texas.

October 26, 1895.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by Emma F. Allibone against the Fidelity & Casualty Company of New York to recover on an accident policy issued by defendant. There was judgment for defendant, from which plaintiff appeals. Reversed.

Simkins & Morrow and Ball, Tempel & Ball, for appellant. Crawford & Crawford and Humphreys & McLean, for appellee.

HEAD, J.

Appellant instituted this suit February 3, 1893, to recover upon an accident policy issued by appellee to Armand De R. Allibone, who was alleged to have been killed August 23, 1891. The petition, after averring the execution of the policy and the death of Allibone, contained this further allegation: "Petitioner would further show unto this court that heretofore, to wit, on the ____ day of August, A. D. 1891, said defendant was duly notified of the death of said Armand De R. Allibone, and of the causes, circumstances, matters, and facts resulting in and connected with said death, as aforesaid; that said defendant waived any proof of loss as required by the terms and conditions of said policy; that said defendant absolutely refused to pay said loss under the terms of said policy, and then and there absolutely denied, and still denies, its liability to any one in any amount under the terms and conditions of said policy; that defendant has wholly failed and refused to pay to your petitioner the whole or any part of said sum, as aforesaid, notwithstanding your petitioner has fully performed and complied with all and singular the terms, stipulations, and conditions of said policy by her to be performed thereunder." Appellee, after the general denial, pleaded specially, in bar, the failure of appellant to commence this suit in one year from the time of the accident, as required by the policy. To this answer appellant only filed general and special demurrers, and general denial. The clause of the policy referred to in the answer is as follows: "Immediate written notice is to be given to the secretary of the company at New York City of any accident, and the injury for which claim may be made, with full particulars thereof, and full name and address of the insured. Unless affirmative proof of death, or loss of limb or of sight, or duration of disability, is so furnished within seven months, and any legal proceeding for recovery hereunder is begun within one year from the time of such accidents, all claims based thereon shall be forfeited to the company; but no legal proceeding for recovery hereunder shall be brought within three months after the receipt of such proof at this office." Upon this defense the court charged the jury: "The provisions of division 3 of the `agreements and conditions' under which the policy of insurance sued on was issued and accepted, wherein it is provided and stipulated that affirmative proof of death, etc., should be furnished within seven months, and legal proceedings for recovery on the policy should be instituted within one year, from the time of the accident on which any claim is based, are both and each valid and binding stipulations. The evidence shows a waiver of proof of loss by the defendant, and such waiver is in law equivalent to furnishing the same within the said seven months. But, as to bringing the suit within one year from the date of the accident, the evidence shows that that was not done, and there is no waiver of that requirement set up by the pleadings, nor shown by the evidence, to have been made by the defendant, such as to dispense with the necessity of bringing the suit within the twelve months. The pleadings and the evidence set up and show that the death of Armand De R. Allibone occurred in August, 1891, and that this suit was brought on the 3d day of February, 1893, making more than one year, and the defendant's plea of limitation of one year set up in its answer must therefore prevail; and you are therefore instructed to find for the defendant upon his plea of the statute of limitation of one year."

In deciding as to the correctness of this charge, the most important question for us to determine is the meaning of the clause in the policy upon which it is based. Does the one year allowed for beginning the suit commence from the date of the accident, or does it commence at the expiration of 90 days from the time proofs of death are furnished? Perhaps there is no question upon which the decisions are more numerous and more widely at variance. Upon one side, it is contended that stipulations of this kind, being unquestionably legal, should be construed like other contracts, in accordance with the literal meaning of the words used; and that, when so interpreted, the 7 months for furnishing the proofs and the 3 months thereafter in which legal proceedings are prohibited must be taken from the 12 months allowed the beneficiary from the date of the accident in which to commence his suit. The leading cases advocating this view, with the reasons upon which they are based, will be found cited in the opinion of the majority of the court in Meesman v. Insurance Co. (Wash.) 27 Pac. 77, Johnson v. Insurance Co., 91 Ill. 92, is also a leading case upon this side of the question. We will stop here to remark, by way of parenthesis, that, if this view is to obtain, it would seem that the reasonableness of the clause of the policy in question in this case should have been submitted to the jury. We are not prepared to hold that two months (which is all that would be left after deducting seven and three months) in which to commence legal proceedings to enforce a contract of this kind should be held reasonable by the court as a question of law. Telegraph Co. v. Phillips, 2 Tex. Civ. App. 613, 21 S. W. 638; Railway v. Childers, 1 Tex. Civ. App. 302, 21 S. W. 76. Another line of authorities adopts the view that where, in contracts of this kind, two seemingly conflicting provisions occur, the entire instrument...