Benefit Ass'n of Ry. Employees v. O'Gorman, 14749.

Citation195 S.W.2d 215
Decision Date17 May 1946
Docket NumberNo. 14749.,14749.
PartiesBENEFIT ASS'N OF RY. EMPLOYEES v. O'GORMAN.
CourtCourt of Appeals of Texas

Appeal from District Court, Wichita County; Walter Nelson, Judge.

Suit by J. M. O'Gorman against Benefit Association of Railway Employees to recover monthly benefits alleged to be due under a policy of accident insurance. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Bert King, Harold Jones, J. Walter Friberg, and King, Dawson & Jones, all of Wichita Falls, for appellant.

E. W. Napier, of Wichita Falls, for appellee.

McDONALD, Chief Justice.

Appellee brought this suit to recover certain monthly benefits alleged to be due him under a policy of accident insurance. Trial to a jury resulted in a judgment for appellee on the basis that he had suffered six months total disability and three months partial disability.

The accident occurred on May 26, 1942. On or about June 16, 1942, appellee furnished appellant with a proof of loss which consisted of a printed form containing certain inquiries and appellee's answers to the inquiries. One of the inquiries reads, "For what length of time do you claim indemnity?" the answer being, "4 weeks." On July 14, 1942, appellant wrote appellee a letter which, omitting the formal parts, reads as follows:

"Following our letter of June 30, we had a complete report from our inspector on your case and after submitting what we believe to be the facts to our National Office Claim Board, the Claim Department is directed to serve notice upon you that we cannot recognize any claim on account of the condition of your back that is said to have arisen on or about May 26. Our check-up does not confirm any total disability as stated in proof and letter. The record would appear to show that you have been able to carry on as usual, or substantially so, at all times.

"Acting further under the directions of the above mentioned Board, this letter will serve as notice that Policy 802450 is being cancelled in accordance with its terms and provisions, our records being marked accordingly. All of the rights and defenses of the Association are reserved in every particular.

"If our report on your ability to continue at work is considered inaccurate, we will be glad to take that question up with your superiors in railroad service with a view to determining what the railroad records reveal along this line. We are quite sure, however, that our inspection of the case has done no injustice to you."

On September 29, 1944, appellee filed his original petition in this suit, alleging and seeking indemnity for one month total disability and one month partial disability following the date of the accident. On March 20, 1945, appellee filed his first amended original petition, alleging and seeking indemnity for total disability for six months and partial disability for one month. In his second amended original petition, filed on May 29, 1945, appellee alleged six months total and three months partial disability. The same extent of disability was alleged in his third amended original petition, filed on July 16, 1945, and upon which appellee went to trial.

The jury found six months total and three months partial disability consecutively following the date of the accident. Other findings need not be noted here.

Both parties appear to consider that the judgment of the trial court is predicated on the theory that the proof of loss given on June 16, 1942, claiming indemnity for four weeks total disability, was insufficient to support the claim finally sued on for six months total and three months partial disability, and that the case turns in part on the question of waiver of proof of loss by appellant by virtue of the writing of the letter above set out.

In view of the cases to be cited, it seems to us that the proof of loss was sufficient to support the claim sued on and the judgment rendered, even though claim was finally made for a greater amount than that indicated in the proof of loss furnished in June of 1942. And this is especially true in view of the language of the letter written by appellant to appellee in response to the proof of loss. In this letter appellant plainly denied that appellee had suffered disability on account of the condition described in the proof of loss, and notified appellee that appellant could not recognize any claim on account of the condition of his back said to have arisen on or about the date of the accident. Appellee could not reasonably have supposed that any additional proof would bring about a change of attitude on appellant's part. In Hohn v. Interstate Casualty Co., 115 Mich. 79, 72 N.W. 1105, the proof of loss claimed five weeks disability, whereas, nine weeks disability was claimed in the suit. The insurer refused to pay any of the claim on the ground that immediate notice of the accident was not given as required by the policy. The court held that the insurer could not avoid part of its liability because of failure to furnish proof of the duration of disability where it had informed plaintiff that no matter what his proof might be, it would not pay. In a somewhat similar situation, the court in Mellen v. United States Health & Accident Ins. Co., 83 Vt. 242, 75 A. 273, after holding that the denial of liability there made was a waiver of proof of loss, further held that plaintiff was not necessarily limited in his recovery to the period of disability shown by the proof of loss. We regard Standard Acc. Ins. Co. v. Cherry, Tex.Civ.App., 48 S.W.2d 755, writ refused, as determinative of the question under discussion. There the insured suffered a period of disability, and later suffered a second period of disability resulting from the same cause extending over a period of 33 weeks. He had filed a proof of loss covering the first period of disability, but not covering the second, although the insured made demand in the suit for payment of disability for the second period. Without repeating the discussion contained in the opinion cited, we refer to it, and interpret it as holding that the proof of loss filed was, under the circumstances there described, sufficient to comply with the terms of the policy. The court stated that only one set of proofs was required, and not additional proofs as the disability continued and further indemnity payments became due. In other cases, such as those involving fire insurance and like claims, it is held that recovery is not necessarily limited to the amount set out in the proof of loss, and this seems particularly to be the rule in cases where the insurer denies all liability upon receipt of the proof of loss. Fidelity Union Fire Ins. Co. v. Ballew-Satterfield Co., Tex.Civ.App., 10 S.W. 2d 163; Corkery v. Security Fire Ins. Co., 99 Iowa 382, 68 N.W. 792. Nor does it seem that an insured is necessarily estopped from suing for more than the amount claimed in the proof of loss, where the insurer has not accepted and paid the claim as set out in the proof of loss or otherwise acted to its detriment by reason of the statements made in the proof of loss, although the statements made therein by the insured may be treated as admissions against interest. Ocean Accident & Guarantee Corporation v. Moore, 8 Cir., 85 F.2d 369, certiorari denied, 299 U.S. 609, 57 S.Ct. 235, 81 L.Ed. 449; United States Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462. Appellant urges that the filing of suit for only one month total and one month partial disability, and testimony given by him in a...

To continue reading

Request your trial
9 cases
  • Free-Flow Muffler Co. v. Kliewer, FREE-FLOW
    • United States
    • Texas Court of Appeals
    • 22 Septiembre 1955
    ...and the Ramsey v. Dunlop cases, and the holdings of the courts of civil appeals in the following cases: Benefit Ass'n of Ry. Employees v. O'Gorman, Tex.Civ.App., 1946, 195 S.W.2d 215, wr. ref., nre; Continental Fire & Casualty Ins. Corp. v. American Mfg. Co. of Texas, Tex.Civ.App., 1948, 20......
  • Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson
    • United States
    • Texas Court of Appeals
    • 26 Octubre 1961
    ...was not required. The interpretation of the letter of waiver was a matter for the court and not the jury. Benefit Ass'n of Ry. Employees v. O'Gorman, Tex.Cvi.App., 195 S.W.2d 215, writ ref. n. r. It will be noted that the letter of waiver was written within 9Sec. days from the date the cons......
  • G. & H. Equipment Co., Inc. v. Alexander, 17687
    • United States
    • Texas Court of Appeals
    • 13 Febrero 1976
    ...& Casualty Co. v. Benham, 233 S.W.2d 334 (Tex.Civ.App., Amarillo, 1950, ref., n.r.e.); and Benefit Ass'n of Ry. Employees v. O'Gorman, 195 S.W.2d 215 (Tex.Civ.App., Fort Worth, 1946, ref., n.r.e.). We hold that the undisputed evidence in the case conclusively established the fact that on th......
  • National Military Mut. Life Ins. Co. v. Cross
    • United States
    • Texas Court of Appeals
    • 30 Abril 1964
    ...S.W. 926; Taylor v. National Life & Accident Ins. Co., Tex.Civ.App., 1933, 63 S.W.2d 1082, writ dism.; Benefit Ass'n of Ry. Employees v. O'Gorman, Tex.Civ.App., 1946, 195 S.W.2d 215, writ ref., n. r. e.; 32 Tex.Jur.2d, Insurance, Sec. 395, page 609, et Appellant cites as authority for his a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT