Commonwealth Bonding & Casualty Ins. Co. v. Bryant

• Decision Date: 08 April 1916
• Docket Number: (No. 7399.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 185 S.W. 979
• Parties: COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRYANT.
• Court: Texas Court of Appeals

185 S.W. 979

COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRYANT.

(No. 7399.)^*

Court of Civil Appeals of Texas. Dallas.

April 8, 1916.

Rehearing Denied May 13, 1916.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Action by C. M. Bryant against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Speer & Brown, of Ft. Worth, and Crosby, Hamilton & Harrell, of Greenville, for appellant. L. L. Bowman, F. M. Kemp and Yates, Sherrill & Starnes, all of Greenville, for appellee.

RASBURY, J.

Prior to the institution of this suit appellant, in consideration of a fixed premium and of certain warranties on the part of appellee, insured appellee in the sum of $7,500 against bodily injuries effected directly and independently of all other causes through external, violent, and accidental means. The benefits of the insurance were available to appellee under several provisions of the policy, depending upon the character of the injury received. Those necessary to a determination of this controversy are the indemnity provisions which provide, in effect, that in case of bodily injuries, effected in the manner just narrated, and which immediately, continuously, and wholly disable and prevent appellee from performing any and every kind of duty pertaining to his occupation, appellant will pay for the period of such total disability a weekly indemnity of $25 per week to an amount not exceeding the principal sum; provided that, in the event any injuries received as stated should only disable and prevent appellee from performing one or more important daily duties pertaining to his occupation, appellant will pay one-half of the weekly indemnity for such partial disability for a period not to exceed 26 weeks. There are other provisions of the policy relating to the presentment of claims, the manner and time of payment, etc., which will be noticed if it becomes necessary when discussing the issues to which same are material. The policy was issued February 19, 1912. Appellee, who was by occupation a railway conductor, was accidentally injured October 1, 1912. This suit was commenced October 5, 1914. The purpose was to recover the total disability indemnity for the period from October 1, 1912, to October 1, 1914, or 104 weeks at $25 per week. There was a trial before jury. At the conclusion of the evidence appellee requested peremptory instruction for the full indemnity for the claimed period which was given. Upon the jury's instructed verdict judgment was entered for appellee for $2,600, from which this appeal is taken.

It is, in effect, conceded by appellant in this court that it issued the policy, and that appellee was injured at the time, place, and in the manner alleged. Appellant, however, denies that appellee was totally disabled within the meaning of the policy, but only partially disabled, and hence entitled to recover, at most, the full period of 26 weeks allowed for partial disability under the policy. Appellee, on the contrary, maintains that the uncontradicted testimony adduced at trial conclusively establishes total disability within the meaning of the policy for the full period of 104 weeks.

The action of the court in peremptorily instructing verdict for appellee constitutes appellant's first and second assignments of error. Appellee, however, in limine, objects to the consideration of the assignments for the reason that there is nothing in the record to show that appellant objected to the giving of said peremptory instruction before same was read to the jury and because the record does not disclose that exception was reserved to the action of the court in overruling the objections. The objection to the consideration of the assignments is grounded upon the amendments to the practice acts enacted by the Thirty-Third Legislature (chapter 59, page 113), which, with the construction repeatedly placed thereon by the courts, are familiar to bench and bar. The facts, in reference to the instructed verdict, as disclosed by the record, are these: The court instructed the jury to return a verdict for appellee for $2,600. For various reasons unnecessary to enumerate, the appellant objected and excepted to the charge, and the document containing the objections and exceptions was approved, signed, and ordered filed by the district judge. Nowhere, however, in or upon the paper is it made to affirmatively appear that the objections to the charge were presented to the court before the charge complained of was read to the jury. Considering the objections in inverse order, we conclude the document referred to is, in substance, a bill of exceptions so far as relates to the objections to the charge and the exceptions to the refusal of the court to sustain them. A bill of exceptions is defined to be:

"A written statement of objections to the decision of a court upon a point of law, made by a party to the cause, and properly certified by the judge or court who made the decision." 1 Bouvier, 348.

While the document does not recite in formal language that counsel excepts to the action of the court in refusing to sustain the several objections set forth therein, it does recite at the conclusion thereof that counsel excepts to same, which is, in substance and by necessary implication, an exception to the refusal of the court to sustain the objections. We do conclude, however, that the bill is insufficient on the ground that it fails to affirmatively disclose that the objections to the charge were presented to the court before the charge complained of was read to the jury. Such a showing is a condition precedent to reviewing the action of the trial court in giving its main charge or in giving or refusing to give special charges, since it was contemplated by the amendments that all attacks upon any of the enumerated charges should be submitted to the trial judge in advance of reading same to the jury, in order that he might add to or correct same if erroneous. Upon failure to do so all errors are waived. St. L. S. W. Ry. Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Case & Sons Cutlery Co. v. Folsom, 170 S. W. 1066; G., T. & W. R. Co. v. Dickey, 171 S. W. 1097; Texas Midland R. R. et al. v. Horton, 172 S. W. 558. In a reply brief appellant asserts that, even though the bill of exceptions is insufficient for the reasons urged, the assignment should be considered because the giving of a peremptory charge presents error "apparent on the face of the record," or, as it is sometimes called, "fundamental error." This issue has also been decided adversely to appellant. Stephenville, N. & S. T. Ry. Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Texarkana & Ft. Smith Ry. Co. v. Brass, 175 S W. 778. In our judgment the objections to any consideration of the assignments are well taken. While it is to be regretted that the assignments must be disposed of upon an issue which precludes an examination into what might be a vital question in the case, and while we might, if choice was a right with us, prefer to do so, at the same time the law of procedure must be reasonably and substantially enforced, since to do so tends to the best ultimate administration of the substantive law.

The third assignment of error complains of the refusal of the court to peremptorily instruct the jury that appellee was not entitled to recover the weekly indemnity of $25 per week for total disability. The same objections are urged to a consideration of the assignment presenting the court's action in reference to the refused charge that are contained in the objections to the consideration of the first and second assignments of error. The objections, however, are not available in reference to the peremptory instruction requested by appellant, for the reason that the bill of exceptions, reserving the objections to the court's action in addition to the matters contained in the first bill, also contains the recitation in substance that the refused charge was requested after the main charge had been submitted to counsel for examination, and before it was read to the jury, and was by the court refused, and to which refusal appellant excepted. Thus it appears that the bill contains all the essentials of a bill of exception as defined in this opinion, as well as the affirmative showing that the court was requested to give the special charge in favor of appellant before giving the one in favor of appellee. Hence it becomes our duty to consider the assignment. The proposition urged is that the charge should have been given because the uncontradicted testimony...