Klein v. Century Lloyds
| Citation | 275 S.W.2d 95,154 Tex. 160 |
| Decision Date | 12 January 1955 |
| Docket Number | No. A-4728,A-4728 |
| Parties | Howard KLEIN et al., Petitioners, v. CENTURY LLOYDS, Respondent. |
| Court | Supreme Court of Texas |
Winston P. Brummett, Brummett & Kimmel, Lubbock, for petitioners.
Chaney & Davenport, Dallas, for respondent.
Petitioners, Howard Klein and daughter, Mary Genevieve Klein, obtained a judgment against Charles Gunter for $10,799.61 damages on account of injuries sustained by them in an automobile collision. Gunter held a policy of public liability insurance issued by respondent, Century Lloyds. The judgment not having been satisfied by Gunter, this suit was brought by petitioners against respondent to enforce its alleged liability under the policy. Findings by the jury favorable to the petitioners were set aside by the trial judge upon motion by respondent for judgment non obstante veredicto, and judgment rendered that petitioners take nothing, which judgment was affirmed by the Court of Civil Appeals. 275 S.W.2d 91.
The policy contains the following provisions:
(1) 'When an accident occurs written notice shall be given by on on behalf of the insured to the company or any of its authorized agents as soon as practicable. * * *
(2) 'If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representatives.'
Provision 3 required co-operation on the part of the insured.
The jury found that Gunter complied with provision 1 by giving notice 'as soon as practicable,' and that he co-operated with respondent as required by provision 3. There was no claim that he complied with provision 2, but in answer to special issues the jury made findings which would estop respondent from relying upon a breach of that provision as a defense. The Court of Civil Appeals held that the uncontradicted evidence disclosed that Gunter failed to comply with provisions 1 and 3, and that there was no evidence to sustain the jury's finding of estoppel. In short, it was held that, notwithstanding the verdict, petitioners were properly denied recovery by the trial court upon three grouns.
The provision requiring co-operation on the part of the insured is more elastic than the other provisions, and, since we are of the opinion that the judgments below should be affirmed on either or both of the other grounds, the question of co-operation becomes immaterial and will not be decided or discussed.
It should be kept in mind that this is a suit on an insurance policy executed to Gunter and that it can benefit petitioners only to the degree which it affords protection to Gunter. Universal Automobile Insurance Co. v. Culberson, 126 Tex. 282, 86 S.W.2d 727. The case must be decided, therefore, just as if Gunter had paid the judgment against him and was plaintiff in the suit seeking indemnity under the terms of the policy. It is unquestioned that the provisions of the policy quoted above and relied upon by respondent as defenses to this cause of action are conditions precedent to the right of Gunter to recover. If he did not meet those conditions, he would not have been heard to assert that respondent was not injured by his failure to do so, or that he should be entitled to recover on equitable grounds. His right to recover at all would have been determined solely by the terms of his policy, and petitioners' right must be measured by the same standard. New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56.
With regard to the failure of Gunter to give notice of the accident 'as soon as practicable,' the facts are not in dispute. The accident occurred on December 4, 1949. In some manner respondent learned of the accident a few days thereafter and employed an insurance adjuster to investigate the case. It is not claimed that by making an independent investigation of the case the respondent waived its right to rely upon the defense of the failure of the insured to give notice 'as soon as practicable.' The sole claim is that there was evidence that the insured did not violate that condition of the policy. When there is eliminated from the evidence relied upon by petitioners in support of that claim all the evidence which would be relevant only to a claim of waiver, we find no evidence of probative value supporting the point. The testimony of the insured was not procured. Petitioners rely upon the claim that circumstances were proved which raised a fact issue. We are unable to discover any circumstances which do more than raise a mere surmise or suspicion. There is no showing that the insured was unable physically or mentally to comply with the condition. Four days after the accident he went to the courthouse in Garza County and pleaded guilty to the offense of assault with an automobile growing out of the collision in question. On January 5, 1950, thirty-two days after the accident, the adjuster employed by respondent made contact with Gunter at Big Spring and procured from him a statement of the facts surrounding the accident. That statement constituted the first notice of any character which Gunter gave respondent of the accident. There is no suggestion that he would ever have given such notice had he not been contacted by the adjuster. While the question of whether notice was given 'as soon as practicable' is ordinarily a question of fact, if, as in this case, the facts are undisputed, the question then becomes a question of law for determination by the court. It is our view that the courts below did not err in holding that, as a matter of law, Gunter failed to give the required notice 'as soon as practicable.' Commercial Standard Insurance Co. v. Harper, Tex.Com.App., 129 Tex. 249, 103 S.W.2d 143, 145, 110 A.L.R. 529.
With regard to provision No. 2, which required the insured to 'immediately forward to the company' any process received by him in connection with a suit brought against him, the facts are likewise undisputed. Petitioners filed suit against Gunter on June 3, 1950. It is stipulated that no copy of the citation served upon Gunter in that case was ever forwarded to the respondent. On January 24, 1951, respondent was joined in that suit, but for some reason the suit was dismissed by petitioners two months later. Following the dismissal, petitioners filed a second suit against Gunter and caused citation in the cause to be served upon him. He immediately forwarded the same to the respondent. The judgment mentioned at the beginning of this opinion was rendered in this second suit. Petitioners did not claim that there was any evidence raising the issue that Gunter complied with the provision requiring him to give immediate notice of citation served upon him in the first suit. Their defense was that respondent was estopped to assert as a defense Gunter's failure to do so. The claim of estoppel is based upon these facts: The adjuster employed by respondent to investigate the case made a written report to respondent, dated January 17, 1950, in which he disclosed that he had advised Gunter that his insurance was limited to coverage of his own vehicle. Respondent strenuously objected to the introduction of the report on various grounds, including the ground that it was hearsay and that there was no showing that the adjuster was authorized to make such representation. Without considering the validity of the objections, since the question is not briefed here, but assuming, for the purpose of this decision, that the objections were not well taken, still the evidence, in our view, falls far short of establishing an estoppel against respondent. There is no direct evidence in the record that Gunter relied upon any representation made to him by the adjuster. He did not testify as a witness and no circumstances appear which would warrant the conclusion that he did rely upon those representations and not upon the plain provisions of the policy.
Point No. 2 of the application for writ of error presents only the question that the trial court erred in its holding that respondent was not estopped to assert the defense of the failure of the insured to forward to it the original damage suit citation. In one paragraph of the argument under that point the claim is presented that the prompt forwarding of the citation in the subsequent suit was a substantial compliance with the condition now being considered. That question was not presented in the motion for new trial in the district court, in the brief or motion for rehearing in the Court of Civil Appeals, or by any point in the application for writ of error. We, therefore, are not authorized to consider it.
We are well convinced that this case has been correctly decided by both courts below. It is accordingly affirmed.
I agree with the result of the majority, but concur with the dissent that the failure to furnish the citation in the first suit should not bar recovery if properly raised. However, I do not believe that an assignment of failure of co-operation brings forward the error below in holding that the claimant failed to forward the citation since these are listed separately in the policy.
The policy involved contains the following provisions which, in my opinion, have a direct bearing on the issues presented to this Court for determination.
'Coverage A-Bodily Injury Liability
'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
'Coverage B-Property Damage Liability
'To pay on...
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