Klein v. Century Lloyds

• Decision Date: 05 April 1954
• Docket Number: No. 6388,6388
• Citation: 275 S.W.2d 91
• Parties: Howard KLEIN et al., Appellants, v. CENTURY LLOYDS, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 91

275 S.W.2d 91

Howard KLEIN et al., Appellants, v. CENTURY LLOYDS, Appellee.

No. 6388.

Court of Civil Appeals of Texas. Amarillo.

April 5, 1954.

Rehearing Denied May 10, 1954.

Brummett, Brummett & Salyars, Lubbock, for appellants.

Chaney & Davenport, Dallas, for appellee.

MARTIN, Justice.

Appellants, Howard Klein and daughter, Mary Genevieve Klein, were injured in an automobile collision with Charles Gunter, a 21-year old man employed as a rough-neck in the oil fields. Appellee, Century Lloyds, is the insurer of Charles Gunter. Appellants, after obtaining a judgment against Charles Gunter in amount $10,799.51, sought a recovery of the same against appellee as his insurer. The trial court disregarded the findings of the jury as detailed hereinafter and entered judgment for appellee. Appellants present 8 points of error on appeal.

The record reveals that Gunter failed to notify appellee, his insurer, in writing of the occurrence of the accident until approximately 31 days had elapsed thereafter. Appellants filed an original suit against Gunter on June 3, 1950. Appellee was joined as a party defendant in this suit on January 24, 1951, but this suit, Cause No. 1012, was dismissed in March 1951 at the request of plaintiffs. It is an undisputed fact and stipulated by the parties to this appeal that no copy of the citation served upon Gunter in Cause No. 1012 was ever forwarded to the appellee. Appellants, following the dismissal of the above numbered cause, filed a second suit against Gunter, Cause No. 1060, and caused citation in the cause to be served on Gunter who forwarded the same to the appellee. Judgment was taken in Cause No. 1060 and a suit thereafter filed against appellee as insurer for Gunter to recover such judgment.

Appellee's defenses as asserted in the cause on trial are that Charles Gunter failed to notify it in writing of the occurrence of the accident as soon as practicable, that he failed to immediately forward to appellee the original damage suit citation and that he also failed to cooperate with the company in the defense of the suit as required by the contract of insurance between appellee and Gunter. Appellee likewise asserts that the collision was not an accident within the terms of the policy in that it was the result of an assault and battery committed by Gunter.

Appellants' major contention is that appellee was estopped to assert as a defense the fact that Gunter failed to forward to it the citation served on him in the original suit. Appellants' theory of estoppel under this issue is that appellee advised Gunter that his insurance was limited to coverage of his own motor vehicle and that Gunter, in reliance upon such representation by appellee's agent, failed to forward the citation served upon him in the original suit, Cause No. 1012. Appellants also assert that notice in writing of the collision was given appellee as soon as practicable and that Gunter cooperated with Century Lloyds as requested. Appellants also urge as a proposition of law that since no harm or prejudice was shown to have resulted to appellee by reason of the failure of Gunter to comply with the policy provisions requiring him to give written notice of the collision as soon as practicable and to forward to appellee the citation served upon him in the original cause, they are therefore entitled to recover against appellee as insurer for Gunter.

Under appellants' theory of the cause as above outlined, they obtained jury findings in the trial court that one J.W. Johnson, agent of appellee, had advised Gunter that that insurance policy issued to him by Century Lloyds was limited to collision damage to his own vehicle and that such statement led Gunter to believe that he had no public liability insurance with Century Lloyds and that Gunter relied on such representation, causing him to fail to forward to appellee the citation served upon him in Cause No. 1012, Klein et al. v. Gunter. The jury further found that Gunter had given written notice to appellants of the occurrence of such collision as soon as practicable and that he had cooperated with Century Lloyds as requested. No issue was submitted to the jury, or requested, on the issue of whether Gunter had committed an assault and battery in regard to the collision.

The trial court, on motion non obstante veredicto, disregarded the above detailed findings of the jury and entered judgment for appellee. The appeal turns on the issue of whether the trial court erred in disregarding such jury findings. The issue asserted by appellants that they were entitled to recover as a matter of law in the absence of harm or prejudice resulting to appellee from Gunter's delay in notifying appellee of the collision and in forwarding to it the citation served on him will also be briefly discussed.

It is undisputed that Gunter appeared in the County Court in Garza County four days following the collision and, without any notice to appellee as his insurer, entered a plea of guilty to the charge of aggravated assault with a motor vehicle, a complaint arising out of the collision. It is likewise undisputed that Gunter did not give any notice in writing to appellee of the collision or of the pending claim for damage until 31 days following the date of...