Maryland Casualty Co. v. W. C. Robertson & Co.

• Decision Date: 14 April 1917
• Docket Number: (No. 7689.)
• Citation: 194 S.W. 1140
• Parties: MARYLAND CASUALTY CO. v. W. C. ROBERTSON & CO.
• Court: Texas Court of Appeals

194 S.W. 1140

MARYLAND CASUALTY CO. v. W. C. ROBERTSON & CO.

(No. 7689.)

Court of Civil Appeals of Texas. Dallas.

April 14, 1917.

Rehearing Denied May 19, 1917.

Error from District Court, Hill County; Horton B. Porter, Judge.

Action by W. C. Robertson & Co. against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Neff & Taylor, of Waco, for plaintiff in error. Morrow & Morrow, of Hillsboro, for defendant in error.

TALBOT, J.

This suit was instituted against the plaintiff in error by the defendant in error in the district court of Hill county by its original petition filed therein on July 21, 1915. The suit was based upon a certain employer's indemnity insurance contract by the terms of which the plaintiff in error agreed to indemnify the defendant in error against loss from liability imposed by law upon the assured for damages on account of bodily injury, including death resulting therefrom, suffered while this policy was in force by any employé of the assured while the said employé was engaged in the occupation connected with the business of cotton ginning, pressing, and bookkeeping, including ordinary repairs. The defendant in error alleged that while said policy was in force one of its employés was injured, and subsequently instituted suit against it, and obtained judgment for such injuries, which the defendant in error was required to pay. This suit was for reimbursement for the amount of such judgment and attorney's fees. The plaintiff in error went to trial on its first-amended original answer, and among other defenses alleged: (a) That it was not liable to the defendant in error for the reason that Ed Washington, the employé who was injured, was not engaged in the business of cotton ginning, pressing, or book-keeping, or in doing such character of repair work as was contemplated by the policy sued on, at the time of his injuries; (b) that the defendant in error, or the assured under said policy, had failed to give notice to the plaintiff in error of the accident as required by the terms of the policy. The case was tried before the court without a jury, the trial resulting in a judgment in favor of the defendant in error for the sum of $848.48, with interest and costs. The plaintiff in error excepted to the judgment of the court, gave notice of appeal, and the case is now before this court on writ of error.

The trial court made and filed the following findings of fact:

(1) I find that the Maryland Casualty Company issued to W. C. Robertson & Co., a firm composed of W. C. Robertson and Ed Woodall, its policy No. 457, of date the 25th day of September, 1908, which said policy is attached to plaintiff's petition, and is set out in the statement of facts pages 28 to 31, and that said policy was issued through Guy C. West of Hillsboro, an insurance agent. (2) By a rider attached to said policy, the gin at Jesse, Tex., operated by the Planters' Gin Company, a corporation, was covered by said policy No. 457. (3) That during the time said policy was in existence, about the 15th day of July, 1909, Ed Washington, a negro, who was a regular employé of the Planters' Gin Company, suffered bodily injury from an accidental fall from the roof of the gin building, which resulted in the amputation of his leg above the ankle immediately thereafter. (4) The said Ed Washington had been employed to work during the ginning season which would actively begin about the 20th of August, and at the time of his injury was engaged in repairing the roof of the building, by painting the same to protect it from rusting and leaking, which said employment was proper in preparing said gin for operation during the ginning season, which must be done before active operation began, and was an ordinary repair in gin work. (5) After said accident Ed Washington filed suit in the district court of Hill county, and procured a verdict and judgment for $1,500 against the Planters' Gin Company, from which an appeal was taken to the Court of Civil Appeals for the Fifth District, and which judgment was reversed and remanded for new trial and subsequently, on the 28th of January, 1914, said Ed Washington recovered a judgment against the Planters' Gin Company for $400 and costs of suit. (6) That said judgment and costs of suit, as hereinafter set out, and attorney's fees, as hereinafter set out, was paid by W. C. Robertson & Co., a firm composed as aforesaid; that the said W. C. Robertson and Ed Woodall were the principal stockholders in the Planters' Gin Company, and that pending this suit they sold their stock in said gin property to some farmers, agreeing to hold the purchaser and property harmless from any claim on account of the suit of Ed Washington, and they in fact paid said judgment on February 1, 1914. (7) The accident to Ed Washington occurred in the latter part of July, 1909, at Jesse, about five miles from Hillsboro, where W. C. Robertson and Ed Woodall, lived. At the time of the accident G. T. Green, who was an officer in the corporation and manager of said gin, was present, but he failed to notify either W. C. Robertson or Ed Woodall of the accident, until W. C. Robertson called him on the telephone from Hillsboro; that the said W. C. Robertson and Ed Woodall had no knowledge of the accident until the time when W. C. Robertson called G. T. Green over the phone, as above mentioned; that the said W. C. Robertson called G. T. Green and learned of the accident about five minutes after he had heard that there had been an accident, and within ten minutes thereafter he called Guy C. West on the telephone, and told him of the accident; that it was something like four or five days or a week after the accident that G. T. Green was called up by W. C. Robertson, as aforesaid. (8) Guy C. West & Co., of which Guy C. West was manager, were the parties through whom the policy in this case was issued, and the general agents for defendant expected Mr. West to give them notice after he learned anything about the accident. (9) W. C. Robertson & Co., were served with citation in the suit of Ed Washington against them on the 25th day of August, 1909, and through their attorneys, Morrow & Smithdeal, they notified Guy C. West & Co., by letter of date August 27, 1909, of the filing of the suit and the serving of citation, sending the citation with the letter, which letter and citation was immediately sent to George Willig & Co., general agents for the Maryland Casualty Company, at Waco, by Guy C. West. And Guy C. West had previously, by letter dated August 25th, notified the general agents aforesaid of the report of the accident. (10) Mr. George Willig, the general agent aforesaid, upon receiving the letter and citation from Guy C. West & Co., dated August 25, 1909, turned the matter over to Messrs. Baker & Baker, as attorneys for the company. J. W. Baker, of that firm, came from Waco to Jesse and Hillsboro on the 29th and 30th of August to investigate the claim. Before coming to Hillsboro, John W. Baker and his brother, Waller, talked the matter over, and determined that, in their opinion, the Maryland Casualty Company was not liable on the policy because of the want of notice in what they deemed sufficient time. (11) The Maryland Casualty Company denied liability under its policy, and refused to defend the suit; and W. C. Robertson & Co. employed Messrs. Morrow & Smithdeal to defend the suit at the agreed fee of $250, which was reasonable, and they paid $125 of same on the 28th day of December, 1909, and the balance during the year 1910. (12) The first judgment for $1,500 was obtained on the 20th day of September, 1909, after a trial, and in order to appeal the case it was necessary to pay the stenographer's fee for getting up the statement of facts, of $9, which was paid on December 1, 1909, by the plaintiff. (13) In the case court costs to the extent of $61.23 were charged against W. C. Robertson & Co., and the same were paid on July 10, 1914. (14) In the policy of insurance sued upon the defendant agreed to defend all suits and pay all expenses. (15) W. C. Robertson and Ed Woodall and G. T. Green stood in readiness to and offered to assist in investigating the claim and the accident, but defendant, upon denial of liability, made no further investigation of the facts than to talk to G. T. Green and W. C. Robertson. At all times after the accident, and up to and after the time of the first trial of the case, in September, 1909, all the witnesses to the accident were at Jesse and Hillsboro, in Hill county, Tex., and easily accessible. (16) The defendant in coming to Hillsboro did so in obedience to a general custom to investigate all accidents claimed to be covered by policies it issued, and did not undertake to consult the various witnesses to the accident; and as a basis for denying liability in no wise considered the question of whether it was hurt by any delay in receiving notice of the accident, relying rather upon the letter of their contract, which, as they interpreted it, required immediate notice of the accident, and upon the fact that such immediate notice had not, in their opinion, been given.

The policy in question provides:

"Immediate notice of any accident and of any suit resulting therefrom, with every summon or other process, must be forwarded to the home office of the company, or to its authorized representative; the company will investigate all accidents, and defend all suits of which such notices are given to it, and pay all judgments recovered against the assured in such suits up to said limits."

The first and second assignments of error are, in effect, that the court erred in its eighth finding of fact, wherein the court found that "Guy C. West & Co., of which Guy C. West was manager, were the parties through whom the policy in this case was issued, and the general agents for the defendant expected Mr. West to give them notice after he learned anything about the accident." The...