Commonwealth Bonding & Casualty Ins. Co. v. Bryant
| Decision Date | 03 May 1922 |
| Docket Number | (No. 3039.) |
| Citation | 240 S.W. 893 |
| Parties | COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRYANT. |
| Court | Texas Supreme Court |
Suit by C. M. Bryant against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff affirmed by the Court of Civil Appeals (185 S. W. 979), and defendant brings error. Judgments of District Court and Court of Civil Appeals reversed, and cause remanded.
Crosby, Hamilton & Harrell, of Greenville, for plaintiff in error.
L. L. Bowman, of Greenville, F. M. Kemp, of Vernon, and Yates, Sherrill & Starnes, of Greenville, for defendant in error.
Defendant in error sued plaintiff in error to recover $2,600 on an accident policy. The policy obligated plaintiff in error to pay a weekly indemnity, aggregating the amount sued for, if defendant in error, who was a railroad conductor, sustained bodily injuries, through external, violent, and accidental means, which should immediately, continuously, and "wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation." The policy obligated plaintiff in error to pay one-half said weekly indemnity for not exceeding 26 weeks "if such injury should not wholly disable the insured, as above, but shall immediately (or immediately following total disability) and continuously disable and prevent him from performing one or more important daily duties pertaining to his occupation."
The trial court directed a verdict for defendant in error for the full amount sued for. The first and second errors assigned by plaintiff in error in the Court of Civil Appeals complained of this peremptory charge. The Court of Civil Appeals refused to consider the assignments on the ground that it was not affirmatively shown that plaintiff in error's objections to the peremptory charge were presented before the charge was read to the jury. The writ of error was granted because of the conflict between this decision and other decisions of the Courts of Civil Appeals to the effect that assignments on the giving of peremptory charges were entitled to consideration in the absence of objection thereto in the trial court.
While the writ of error has been pending, the rule has been settled by the decisions of this court that a party is entitled to have a judgment against him reversed, where it was based on a verdict following an unauthorized peremptory charge, though no exception thereto was reserved before the charge was given. Walker v. Haley, 110 Tex. 50, 214 S. W. 295; Decker v. Kirlicks, 110 Tex. 93, 216 S. W. 385.
The Court of Civil Appeals considered and overruled an assignment complaining of the refusal of a charge asked by plaintiff in error to the effect that defendant in error was not entitled to recover the weekly indemnity allowed by the policy for total disability, being of the opinion that reasonable minds might, from the evidence, reach different conclusions...
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