General Acc. F. & L. Assur. Corp. v. Butler's Ice C. Factory

• Decision Date: 20 January 1927
• Docket Number: (No. 1952.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 674
• Parties: GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. BUTLER'S ICE CREAM FACTORY, Inc., et al.
• Court: Texas Court of Appeals

291 S.W. 674

GENERAL ACC. FIRE & LIFE ASSUR. CORPORATION, Limited, v. BUTLER'S ICE CREAM FACTORY, Inc., et al.

(No. 1952.)^*

Court of Civil Appeals of Texas. El Paso.

January 20, 1927.

Rehearing Denied February 3, 1927.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by the Butler's Ice Cream Factory, Inc., against the General Accident Fire & Life Assurance Corporation, Limited, in which the United States Fidelity & Guaranty Company and Mrs. Ruth Hays, individually and as guardian, intervened. Judgment for plaintiff and interveners, and defendant appeals. Affirmed.

E. C. Markel, of Philadelphia, Pa., and Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

R. A. D. Morton, C. W. Croom, and A. W. Norcop, all of El Paso, for appellees.

WALTHALL, J.

Butler's Ice Cream Factory, Inc., plaintiff in the trial court and referred to hereafter as plaintiff appellee, brought this suit against defendant, General Accident Fire & Life Assurance Corporation, Limited, on an automobile indemnity insurance policy theretofore issued by it to plaintiff appellee covering a number of delivery trucks used by plaintiff in its business, one of which trucks while driven by an employee of plaintiff was alleged to have injured one George Hays in an accident, resulting in his death.

Mrs. Ruth Hays, individually and as next friend of the minor children, naming them, of the marriage of herself and George Hays, had secured a judgment for $5,000 and costs because of said injury to Hays, against Butler's Ice Cream Factory, Inc., based on its common-law liability, whereupon it brought this suit against defendant upon the theory that defendant was liable to it on its said policy of insurance.

During the progress of the trial it appeared that plaintiff appellee, in the matter of the former suit referred to and as security for an unpaid balance, had assigned the said insurance policy and cause of action, reduced to judgment, to Mrs. Ruth Hays, individually and as guardian, together with the United States Fidelity & Guaranty Company, all of whom intervened in this suit as parties plaintiff. Defendant, appellant here, based its principal defense on the theory that notice of the accident as called for in the policy had not been given it by plaintiff appellee.

The trial court in this suit based on a special verdict, rendered judgment against defendant in favor of interveners United States Fidelity & Guaranty Company and Mrs. Ruth Hays, individually and as guardian, in the sum of $1,522.50, and in favor of plaintiff, Butler's Ice Cream Factory, for $1,522.50, with interest thereon as to both amounts from November 10, 1925, when that amount shall be paid by defendant to interveners; and further adjudging that plaintiff appellee recover of defendant the additional sum of $2,477.50, with interest from November 10, 1925, at the time and in the amounts that plaintiff appellee shall thereafter pay to Mrs. Ruth Hays in satisfaction of said previous judgment secured by her against plaintiff, and referred to as cause number 25746. It was further ordered that the judgment in this case be without prejudice to plaintiff appellee or interveners to thereafter prosecute their cause of action for such amount or amounts as may be paid by or for plaintiff appellee in satisfaction of the judgment in said cause (No. 25746) and without prejudice to any rights the plaintiff or interveners may have by reason of any future satisfaction, in whole or in part, of the judgment in said cause No. 25746.

Defendant challenges the correctness of this judgment both in its entirety and in its several provisions, and seeks to have it reviewed in this court.

In view of some of the points presented, it might be well to further state that this case was tried with a jury and submitted upon special issues. On special issues submitted the jury found:

(1) The defendant was not prevented from making any defense or preserving any substantial right by reason of the failure of the assured to notify it of the accident between the time of the accident and the time when it received notice of the accident.

(2) The defendant first had notice of the accident resulting in the injury to Hays within 30 days from the date of the accident.

(3) The defendant was notified by plaintiff of the accident to Hays within a reasonable time under all of the facts and circumstances.

Judgment as above was entered on motion of plaintiff and interveners.

Opinion.

Mrs. Ruth Hays, individually and as guardian of the minor children, moves the court to dismiss this appeal on the ground that this case was tried below after article 2253, Revised Civil Statutes 1925, became effective, and that appellant did not give notice of appeal as provided in said article, in that appellant did not file any written notice of appeal with the clerk of the court below, as is manifest from the transcript of the record. Appellee's motion to dismiss for want of proper notice of appeal is overruled for the reason stated in A., T. & S. F. Ry. Co. v. Hix, 291 S. W. 281, recently decided by this court.

The policy of insurance upon which this suit is brought contains a provision as follows:

"D. Notice of Accidents. The assured shall give immediate written notice of any accident, irrespective of whether any personal injury or property damage is apparent at the time and like notice of any claim and for suit resulting therefrom, and such notice, together with every summons or other process, must be forwarded to the home office of the corporation or to its authorized representative."

Appellant pleaded the above provision of the policy and at the close of the evidence moved for an instructed verdict, and also requested a peremptory charge in its favor, and now, by its proposition, submits that the evidence shows that appellee wholly failed to give to appellant such notice of the injury to Hays, and that the court should have directed a verdict for appellant. Appellees alleged that appellant and its agents, naming them, had immediate actual knowledge during the month of December, 1924, of the accident occurring to Hays, and after receiving such notice had opportunity to investigate such accident, and proceeded to and did make full and complete investigation of said accident in co-operation with plaintiff appellee, its agents, and employees, and that after appellants' said agents learned of such accident, plaintiff appellee complied with all requests and demands of appellant with reference to formal notice when forms were supplied by appellant for such notice, and that in December, 1924, and in January, 1925, did give the formal written notice of the accident, and within 90 days from the time of the accident, and that by reason thereof appellant is now estopped to deny that notice was given.

Appellees object to a consideration of appellants' above proposition on the grounds, first, that the case was submitted upon special issues, and the answers of the jury thereon, not having been set aside, are conclusive as between the parties as to the facts found, though the verdict is contrary to the undisputed evidence; second, that appellant, having failed to assign error to the action of the court in refusing to set aside the special verdict, it cannot now complain of the judgment on the ground that the findings are unsupported by the evidence.

Appellant, however, under its above proposition, refers to its assignments assigning error to the overruling of its motion for a directed verdict in its favor made immediately following the close of the evidence. The record discloses that appellant submitted a requested charge instructing the jury to return a verdict in its favor, which charge the court refused to give. The assignments, as indicated by their verbiage, are based on the theory that the evidence conclusively shows that plaintiff appellee wholly failed to give to appellant immediate notice of the accident in which George Hays received his injuries resulting in his death, within the meaning of the provision in the policy of insurance with reference to such notice. We have concluded that the proposition is germain to and expressive of the point made in the several assignments, and should be considered by this court. The point we will consider is: Was the trial court in error in refusing to give the requested charge directing a verdict for appellant, in view of the provision in the policy as to notice that the assured shall give immediate written notice of any accident to the home office of the appellant or to any of its authorized representatives?

The record discloses a formal written notice of the accident was given. The date thereon is January 15, 1925, following the accident to George Hays on November 22, 1924. Another date of December 30, 1924, is also noted on the same written notice of the accident. The notice is manifestly on a form furnished and used by appellant in making report of accident. The written report of the accident was made out by M. P. Conley, adjuster of appellant, during the month of December, 1924, and the months of January and February, 1925. Henry B. Stone was the local policy-writing agent of appellant, and was the representative of appellant in that capacity during the months above stated.

J. R. Butler, president and general manager of plaintiff, appellee company, testified: Heard of the accident by telephone from Polo Alvarez, the driver of the truck, shortly after it happened, and went to place of the accident immediately. Went to the police station where Hays had been carried and was then on the operating table. As soon as he went back to his office he asked Mr. Morehead, the office man, to notify H. B. Stone of the accident. Morehead called up Stone's office over the telephone. It was Saturday afternoon, and no one answered. Talked with Conley over the telephone; Conley called and asked whether there had ever been a report made of the accident; sent Dixon (who had...