Commercial Standard Ins. Co. v. Harper
| Decision Date | 15 March 1934 |
| Docket Number | No. 1481.,1481. |
| Citation | 69 S.W.2d 820 |
| Parties | COMMERCIAL STANDARD INS. CO. v. HARPER.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from McLennan County Court; Aubrey Morris, Judge.
Suit by J. W. Harper against the Commercial Standard Insurance Company. From a judgment in favor of plaintiff, defendant appeals.
Affirmed.
Touchstone, Wight, Gormley & Price, of Dallas, for appellant.
F. R. Valentine and J. W. Spivey, both of Waco, for appellee.
The plaintiff, J. W. Harper, recovered judgment in the lower court against the defendant, Commercial Standard Insurance Company, on an insurance policy issued by the defendant to insure the plaintiff against loss of his automobile by theft. The insurance company appealed.
The policy required the insured, in the event of the loss of his automobile by theft, to give "immediate notice" of such loss to the company. The appellant, by an unsworn plea, alleged that notice was not given within the time provided for in the policy, and sought to defeat liability by reason thereof. The evidence shows that the automobile was stolen on June 30, 1932. The insured reported the loss to the municipal police on the same day, but did not report to the company until July 28th of the same year. The jury found that notice of the loss was given to the company within a reasonable time.
Article 5546, Revised Civil Statutes of 1925, provides:
By the terms of the above statute, the provision of the policy requiring the insured to give "immediate notice" of the loss to the company is void unless it be held that by such provision it was intended that such notice should be given within a reasonable time. 24 Tex. Jur. 1093; Citizens' Guaranty State Bank v. National Surety Co. (Tex. Com. App.) 258 S. W. 468; Ætna Casualty & Surety Co. v. Austin (Tex. Civ. App.) 285 S. W. 951; Id. (Tex. Com. App.) 300 S. W. 638; Francis v. International Travelers' Ass'n (Tex. Civ. App.) 260 S. W. 938; Id., 119 Tex. 1, 23 S. W.(2d) 282; American Surety Co. v. Blaine, 115 Tex. 147, 277 S. W. 619; Western Indemnity Co. v. Free & Accepted Masons (Tex. Com. App.) 268 S. W. 728. If we undertake to give said provision of the policy that construction which will make it legal, and, as a consequence, hold that it was intended that such notice should be given within a reasonable time, then under the terms of the statute we must hold that a notice given within ninety days after the loss was within a reasonable time. The undisputed facts show that notice was given within thirty days after the loss and therefore within the time provided by statute. Moreover, the jury found that notice of the loss was given within a reasonable time, and the finding of the jury on this issue is binding on the appellant. General Accident Fire & Life Assurance Corp. v. Butler's Ice Cream Factory (Tex. Com. App.) 5 S.W.(2d) 976. Furthermore, we do not think the appellant could raise the issue of want of notice in the absence of a sworn plea. American Indemnity Co. v. Mexia Independent School District (Tex. Civ. App.) 47 S.W.(2d) 682, par. 4.
In the case of Lone Star Finance Co. v. Universal Automobile Ins. Co., 28 S.W.(2d) 573, the Court of Civil Appeals at Galveston held that the statute in question did not apply to a clause in an automobile theft policy requiring immediate notice of the theft. We think such holding is contrary to the holding of the Supreme Court in the cases hereinbefore cited. Moreover, we think the disposition made by the Galveston court of that case can be fully justified on another and different reason given by the court therein and that the ruling of the court on the point here under consideration was unnecessary to a disposition of that case. The appellant's contention in this respect is overruled.
There was a rider attached making the policy payable to Standard Realty Company, mortgagee, "as its interest may...
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Home Ins. Co., New York v. Springer, 13921.
...found in defendant's brief, but, as shown, they are only indirectly in point. Defendant says that the case of Commercial Standard Ins. Co. v. Harper, Tex.Civ.App., 69 S.W.2d 820, is the nearest case in point to be found. We have read that case closely, and while it is applicable only by imp......