Lane v. Anchor Cas. Co.

• Decision Date: 01 March 1962
• Docket Number: No. 13882,13882
• Citation: 355 S.W.2d 90
• Parties: Ernest J. LANE et ux., Appellants, v. ANCHOR CASUALTY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 90

355 S.W.2d 90

Ernest J. LANE et ux., Appellants, v. ANCHOR CASUALTY COMPANY, Appellee.

No. 13882.

Court of Civil Appeals of Texas, Houston.

March 1, 1962.

Harry P. Jarvis and Jerome J. Pope, Houston, for appellants.

H. H. Prewett, Houston, Dyess, Dyess, Prewett & Cantey, Houston, for counsel, for appellee.

WERLEIN, Justice.

Ernest J. Lane obtained judgment by default against Dan W. Hammons for damages resulting from an automobile collision. Thereafter as a judgment creditor he brought this suit against appellee, Anchor Casualty Company, under a policy it had issued Hammons. Hammons intervened in the suit. The case was tried before the court without a jury and judgment was rendered in favor of appellee. Only Lane has appealed from the judgment.

Since the record contains no findings of fact or conclusions of law by the trial court, the trial court's judgment implies all necessary fact findings in support thereof. In seeking to determine whether there is any evidence to support the judgment and the court's implied findings of fact, 'it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.' Renfro Drug Co. v. Lewis, 1950, 149 Tex. 507, 235 S.W.2d 609; Kirksey v. Warren, Tex.Civ.App.1961, 348 S.W.2d 33.

Since appellant's claim rests entirely under the policy which was issued by appellee to Hammons, appellee has the right in this action to assert whatever defenses it might have against Hammons under said policy. Univerals Automobile Insurance Company v. Culberson, 126 Tex. 282, 86 S.W.2d 727, 87 S.W.2d 475; New Amsterdam Casualty Company v. Hamblen, 144 Tex. 306, 190 S.W.2d 56. Appellee has asserted that it is not liable under the policy for the reason that Hammons did not give written notice of the accident as soon as practicable; that he did not deliver suit papers to appellee, and did not cooperate with appellee.

Condition 1. of the policy provides:

'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

The evidence shows that the accident occurred on January 21, 1956 and that the first written notice thereof was given appellee's agent, Ray Toman, on February 8, 1956 in the form of a letter dated February 6, 1956, from appellee's attorney, Mr. Duckett, in El Campo. Hammons testified at the trial that he reported the collision to Toman on Monday following the accident. This statement was denied by Toman. Previously in a sworn question and answer statement given by Hammons on March 1, 1956, he said he never reported the accident prior to the time he talked to Mr. Duckett, although he had seen Mr. Toman and could have reported it, but he did not think it was necessary to do so because there wasn't much damage to the other car and Mrs. Lane said she wasn't hurt. He also didn't think he was at fault in the accident.

We think there was ample evidence to support the court's implied finding that no notice was given appellee of the accident in question until the written notice was given on February 8, 1956. Eighteen days elapsed before written notice was given although Hammons admitted he had in the meantime seen Toman and could have given notice if he had thought it was necessary to do so. The trial court's implied finding that written notice was not given by the insured to appellee or any of its agents 'as soon as practicable', under the facts and circumstances of this case, is supported by evidence of probative force.

In Klein v. Century Lloyds, 1955, 154 Tex. 160, 275 S.W.2d 95, it was held that giving notice within 32 days was not as soon as practicable as a matter of law, and further that it was not necessary for the insurer to show harm or prejudice. In the instant case there are no extenuating circumstances, excusing the giving of notice sooner than was done. The fact that Hammons did give notice to another company carrying his $50.00 deductible collision insurance within a day or two after the accident of damage to his own car amounting to $364.00, clearly indicates that he was in a position to have given written notice to appellee or its agents much sooner than 18 days. See Allen v. Western Alliance Insurance Co., Tex.Sup.1961, 349 S.W.2d 590; State Farm Mutual Automobile Ins. Co. v. Hinojosa, Tex.Civ.App., 346 S.W.2d 914, writ ref., n. r. e.

Appellant asserts that the court erred in impliedly finding and concluding that the policy of insurance required Hammons to deliver the process served on him to ap...