Continental Cas. Co. v. King, 7757
| Decision Date | 27 November 1967 |
| Docket Number | No. 7757,7757 |
| Parties | CONTINENTAL CASUALTY CO., Appellant, v. Richard M. KING, Appellee. . Amarillo |
| Court | Texas Court of Appeals |
Gibson, Ochsner, Harlan, Kinney & Morris and James H. Doores, Amarillo, for appellant.
Gordon, Gordon & Buzzard and Ross N. Buzzard, Pampa, for appellee.
This is a suit on an insurance contract providing a lump sum of $25,000.00 for total and permanent disability due to accidental injury. Plaintiff alleged an accidental injury to his heart on December 9, 1964, and total and permanent disability resulting therefrom. The case was tried to a jury upon special issues. In answer to the special issues, the jury found that plaintiff sustained an injury to his body on or about December 10, 1964; that plaintiff sustained total disability; that the injury was the sole cause of such disability; that such total disability had continued for a period of twelve consecutive months following December 19, 1964; that total disability began within 365 days following December 10, 1964; that total disability would be permanent from and after the end of the twelve months period following December 19, 1964; that total disability has been continuous from and after twelve months following December 19, 1964; that plaintiff gave written notice of claim within a reasonable time after the expiration of twenty days after the occurrence of the loss and that such injury inquired about was accidental. Judgment was rendered in favor of the plaintiff upon the verdict of the jury. From that judgment, the defendant perfected this appeal. Hereafter, the defendant, Continental Casualty Company will be referred to as appellant and the plaintiff, Richard M. King, as appellee.
Appellant's first six assignments of error contend that appellee did not give proper notice as provided for in the policy and that the appellant did not waive its policy requirement requiring written notice by thereafter furnishing forms for proof of loss. The jury did not answer the issue inquiring if the appellant waived such notice but found that appellee gave written notice of claim within a reasonable time after the expiration of twenty days after the occurrence of loss. If notice was given within a reasonable time, no waiver by appellant was necessary. The provisions of the policy in question provides as follows:
PART VII INADVERTENT ERROR The insurance of an Insured Person shall not be prejudiced by the failure on the part of the Holder to transmit reports, pay premium or comply with any of the provisions of the policy when such failure is due to inadvertent error or clerical mistake.
It would be necessary to determine if the insured sustained injury from an accident which caused total disability as defined in the policy independently of other causes with such disability commencing within 365 days from the injury and continuing for twelve consecutive months and being total and permanent and continuous at the end of such period.
On the day in question, appellee came home from work after completing his usual twelve hour day, cleaned up, watched T.V. and went to bed about 9 P.M. His employer called at 11 P.M. directing him to take his truck to unload another truck which was stuck in a ditch. It was a cold night and was raining. After leaving the pavement, he began to have trouble with mud balling under his trailer wheels. He was driving a five axle rig that weighed unloaded approximately 20,000 to 23,000 lbs.
Appellee testified in part as follows:
'Q. All right. Well, what would you do when the mud began to ball up?
A. I began to work the truck backwards and forth and tried to go forward as far as I could, and then back up to where I thought I could have--make more run and make more progress going forward, and one thing led to another until the tractor got out of control, and started jack-knifing, and then that's--
Q. (Interrupting) Did it have a tendency to jack-knife before that?
A. Well, it had a tendency to jack-knife most any time in the mud .
Q. Did this require a good deal of effort on your part?
A. Yes.
Q. How would it require effort?
A. Because you are sitting there in a strain, working the truck with the throttle and the clutch and your gears, shifting.
Q. All right. After the truck did jack-knife, what happened, please?
A. I shut her down and called them over the two-way radio that I had came as far as I could go and they'd have to send a caterpillar down the road after me, pull me up to where they were.
Q. Just after it jack-knifed, did you have any pain?
A. Yes.
Q. How did it feel?
A. Well, I began to--my chest began to tighten up and perspiration started breaking out, and I was getting short of breath, couldn't get my breath. I immediately turned the heater off and rolled my glass down, and that helped, but I didn't--for the next 15 or 20 minutes, I never--it took me about that long to get a decent breath.
Q. Did you say you broke out in a sweat?
A. Yes, I broke out in a clammy sweat.
Q. All right. Did you say you radioed for help?
A. Yes.
Q. Who did you radio?
A. The terminal manager, which was Royce McDiver.
Q. And what did you tell him?
A. I told him he'd have to send a caterpillar up there to pull me on down there, that I had came as far as I could go.
Q. Then, what did you do?
A. Well, he told me he'd send help up there, and I just shut it--I didn't even--I didn't try any more. I just laid over the steering wheel and tried to relax, get to feeling a little better while I was waiting on the cat to come and get me.
Q. Do you know how long it took the cat to get there?
A. Oh, in the neighborhood of 20 to 35 minutes.
Q. And then, what did you all do?
A. Well, there was a boy hooked the cat on to me, and then we went down the road to where the other truck was.
Q. Then, what happened?
A. Then, we got out and took the two hoses from the two trucks and hooked up the two pumps together and unloaded his truck on to mine.
Q. Did you make any comment to Mr. McDiver about your trouble there and what happened to you?
A. Yes.
Q. And what did you tell him?
A. I told him that something had happened back up the road that had never happened to me before, and I didn't have any idea what it was or nothing, and so we just--he didn't question me no more about what--other than, he asked me, when we finished and put our hoses back in each one of our trucks, he asked me how I was feeling, and I said, 'Well, I don't feel sick at my stomach, or anything like that', but I said, 'Every time I bend over and raise up, I'm dizzy; I'm weak, but I'm not like I was going to throw up or sick at my stomach'. I just had still a hurting feeling in my chest and my breathing was awful short, but I wasn't, as far as being sick, outside of that, I wasn't sick, but I was--dizziness, is what I was, and weakness.
Q. Did you drive out of there?
A. No, sir.
Q. How did you get out of there?
A. We came back in the car.
Q. Whose car?
A. The terminal manager, Royce McDiver's car.
Q. Who did you ride with? Did he drive or did you drive?
A. No, he was driving.'
Appellee did not go to work the next day after his injury but went to see Dr. Hackley who examined him and after treating him gave him a prescription. After two or three days, he went to Pampa to see Dr . Ashby, his family doctor, and after examining appellee, Dr. Ashby put him in the hospital where he remained for ten days and after he was out of the hospital, he visited Dr. Ashby every two weeks the first month and then three weeks and then once a month. After a certain length of time, Dr. Ashby consented for him to go back to work on condition that he rest and not exert himself. Appellee went back to driving a truck about the first of March, 1965 doing the usual work and drawing the same compensation as before the injury and continuing until January 29, 1966, which was the last time he drove a truck. At that time, on February 4, 1966, Royce McDiver, terminal manager for appellee's employer, required appellee to go to Dr. Kleeburg for an I.C.C. physical examination. Dr. Kleeburg made his examination and told appellee to return to work and to continue with his duties until appellee heard from him but his employer would not permit appellee to go back to work until Dr. Kleeburg made his report. About a week or ten days after February 4, 1966, there was a conference with Dr. Kleeburg and Royce McDiver. Aubrey Covington and appellee were present at this conference. Dr. Kleeburg refused to pass appellee for employment to drive a truck because his heart damage was too severe and said appellee should not exert himself at all. On or about March 12, 1966, appellee contacted his attorney about this claim and on March 14, 1966, the appellee's attorney by letter first notified appellant of this claim.
It is appellant's contention that appellee was obligated to give appellant notice of the accident within twenty days after the accident or a reasonable time thereafter and appellant was not liable because appellee failed to comply with the terms of the policy requiring such notice. It is true that it was some 459 days from the accident until appellant was notified thereof .
It is appellee's contention that since the...
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