Hefner v. Fidelity & Casualty Co. of New York

• Decision Date: 05 June 1913
• Citation: 160 S.W. 330
• Parties: HEFNER v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: Texas Court of Appeals

Page 330

160 S.W. 330

HEFNER v. FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Civil Appeals of Texas. El Paso.

June 5, 1913.

On Rehearing, November 11, 1913.

Appeal from District Court, Reeves County; S. J. Isaacs, Judge.

Action by T. J. Hefner against the Fidelity & Casualty Company of New York. Judgment for defendant, and plaintiff appeals. Affirmed.

J. W. Parker and Hefner & Cooke, all of Pecos, for appellant. Nealon, Neill & Thomason, of El Paso, for appellee.

HARPER, C. J.

Appellant filed this suit March 23, 1912, to recover on an accident insurance policy for total disability not exceeding 200 weeks, at $25 per week, as an attorney at law, alleging that the accident happened about August 20, 1909. The defendant, answering, pleaded that the policy upon which plaintiff sought to recover provided, first, that written notice should be given to the company as soon as might be possible, together with full particulars; that this provision was a condition precedent to the right of recovery; that at least six months had elapsed after the alleged accident before notice was given. Further pleaded that the policy provided that legal proceedings could not be brought on the policy before the expiration of three months from the date of filing final proofs, and not at all unless begun within six months from the date specified for filing final proofs, and, further, that plaintiff filed his notice many months after the accident, and that he filed no affirmative proof of disability. Defendant further alleged that the policy insured against bodily injury sustained through accidental means, resulting independently and exclusively of all other causes in immediate, continuous, and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation, and that plaintiff's injuries did not come within this clause of the policy, therefore he should not recover. The parties announced ready for trial before a jury, and the evidence introduced, whereupon the court instructed a verdict for the defendant, and the only assignment of error which can be considered charges that this peremptory charge is such an error as to require a reversal of the case. The question, therefore, for this court to pass on is, Did the plaintiff, by his pleading and proof, make a prime facie case against the defendant?

The portions of the policy, and all the evidence essential to this opinion we quote as follows:

"The Fidelity and Casualty Co. of New York * * * does hereby insure the person herein called assured, against: Bodily injury sustained during the term of one year from date of this policy * * * resulting directly, independently and exclusively of all other causes, in (a) immediate, continuous and total disability, that prevents the assured from performing any and every kind of duty pertaining to his occupation; (b) immediate (as respects the injury or as respects preceding total disability) and continuous partial disability that prevents the assured from performing fully work essential to the duties of his occupation * * *.

"Accident Indemnities.

"Total Disability.

"Art. 1. If the assured suffers total disability, the company will pay the assured for the period of the said total disability, not exceeding two hundred weeks, twenty-five dollars a week."

"Art. 3. If the assured suffers total disability for a period of two hundred weeks, and if the bodily injury causing the said total disability does not result in a loss named in the table of article 4, nor in a loss covered under article 9 or 10 but continuously after said period of two hundred weeks totally disables and prevents the assured from performing any and every kind of duty pertaining to his occupation, the company will pay the assured, so long as the assured continuously suffers said disability subsequent to two hundred weeks and is under seventy years of age, six dollars, and twenty-five cents a week."

"Art. 9. If the assured suffers total disability and if during the period of said total disability and within ninety days from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of all other causes, in permanent paralysis whereby the assured is permanently unable to engage in any work or occupation for wages or profit; and if the assured survives the said paralysis for a period of one year and at the end of said period is declared by competent medical authority satisfactory to the company to be permanently paralyzed and by reason of the said permanent paralysis to be permanently unable to engage in any work or occupation for wages or profit; the company will pay the assured, in addition to the weekly indemnity to which he may be entitled under article 1, one thousand two hundred and fifty dollars.

"Art. 10. If the assured suffers total disability, and if during the period of said total disability and within six months from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of all other causes, in incurable insanity, and if within the said period of six months the assured is committed by the proper authorities on account of the said insanity to a state or licensed asylum for the insane and is there continuously confined for a period of two years, and within thirty days after the expiration of the said period of two years is declared by competent medical authority satisfactory to the company to be incurably insane and by reason of such insanity to be permanently unable to engage in any work or occupation for wages or profit; the company will pay to the person or persons duly authorized to receive the money on behalf of the assured, in addition to the weekly indemnity to which the assured may be entitled under article 1, one thousand two hundred and fifty dollars."

"Art. 17. If the assured suffers total disability for a period exceeding three months, the weekly indemnity to which the assured may be entitled under article 1, 3, or 4, for any part of the entire period (provided such part is not less than three months) shall be payable upon the assured's filing affirmative proof of total disability and of the duration thereof for each part of the entire period for which claim is made. Proofs covering the entire period of total disability must be filed as hereinafter set forth.

"Art. 18. Written notice of an accident on account of which a claim may be made must be given to the company at its home office in New York City, as soon as may be reasonably possible, together with full particulars thereof and the full name and address of the assured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company as soon as may be reasonably possible after the occurrence of the accident causing such bodily injury or death. Affirmative proofs in writing must be filed with the company as follows:

"Section 1. Accident Claims.—Affirmative proofs of death, dismemberment, loss of sight, total or partial disability, and the duration thereof, must be filed with the company within two months from the time of death or of dismemberment or of loss of sight or of the termination of the period of total or partial disability for which claim is made. Affirmative preliminary proofs under articles 9 and 10, must be filed with the company within two months from the date of the beginning of paralysis or insanity and affirmative final proofs under said articles must be filed with the company within two months from the date of the final examination required under said articles.

"Art. 19. Legal proceedings for recovery hereunder shall not be brought before the expiration of three months from the date of filing final proofs at the company's home office, nor brought at all unless begun within six months from the date specified herein for final proofs. If any limitation set forth in this and the preceding article is prohibited by the statutes of the state in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statute."

"Art. 23. The terms, bodily injury, total disability, partial disability, dismemberment, loss of sight, and death, are defined in the insuring clause, and as so defined shall be understood wherever used in this policy."

T. J. Hefner, plaintiff, testified: "I live in Reeves county, Texas. My occupation is that of lawyer. I happened to an accident August 20, 1909, at my home in Pecos, Tex. Some carpenters were raising my house several inches and had dug and left a hole uncovered; that evening after dark, in going to a hydrant in the yard for water, I stepped, with my left foot, into this hole and went down with considerable force; when I straightened up I felt a keen pain in my left side, just above the hip bone, and for several weeks it was located in left side and hip, but ultimately worked around into my back. It grew worse until July, 1910, when I lost the use of my limbs. I could not say definitely and positively that I realized that my continued suffering and continued pain and ailment was the result of that accident until the latter part of June or first of July, 1910; that is, I did not realize the seriousness of the injury until that time, about 10 or 11 months afterwards. In answer to the question whether or not I attributed, immediately after the accident, the accident itself as the cause of my continued injury and suffering, or to other causes, will say, I always connected the hurt or injury with the accident; it was a case of `I will be better tomorrow, and will be all right next week,' and it went along that way for several weeks before I consulted a physician at all. I think it was in October or November when I went to Dr. Camp's office and told him how I was affected, and he told me I was suffering from rheumatism and prescribed for me. I took the...