Maryland Casualty Co. v. Hudgins

• Decision Date: 21 February 1903
• Citation: 72 S.W. 1047
• Parties: MARYLAND CASUALTY CO. v. HUDGINS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 1047

MARYLAND CASUALTY CO. v. HUDGINS.^*

Court of Civil Appeals of Texas.

February 21, 1903.

Appeal from District Court, Bowie County; J. M. Talbot, Judge.

Action by Sallie N. Hudgins against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Webber & Webber, Dan. T. Leary, and Baker, Botts, Baker & Lovett, for appellant. Sheppard, Jones & Sheppard, for appellee.

RAINEY, C. J.

Suit on accident insurance policy issued by appellant to Wm. T. Hudgins, husband of appellee. Hudgins died November 1, 1900. The policy contained the following clause, viz.: "Immediate written notice must be given the company at Baltimore or its duly authorized agent of any accident and injury for which a claim is to be made, with full particulars thereof, full name and address of the assured. Affirmative proof of death, or loss of limb, or of sight, or of duration of disability must also be furnished to the company within two months from time of death, or of loss of limb or sight or of the termination of the disability. Legal proceedings for recovery hereunder may not be brought till after three months from date of filing proofs at the company's home office, nor brought at all unless begun within six months from the time of death, loss of limb or sight, or the termination of disability. Claims not brought in accordance with the provisions of this clause will be forfeited to the company." Relating to said clause, plaintiff's petition alleged: "Plaintiff shows to the court that she did not give defendant notice of said accident and injuries and proof of death of her said husband as required by said policy because said stipulations in said policy are contrary to law, and void. Again, when plaintiff applied to defendant in April, 1901, and in June, 1901—which was prior to bringing this suit—for blank forms of said notices and proofs of death of her said husband for the purpose of filling them out, defendant refused to furnish the plaintiff with said blank forms, stating as a reason for said refusal that liability to plaintiff on said policy was denied by defendant; that defendant refused to recognize any claims against it on said policy, contending that said Wm. T. Hudgins died from natural causes, and not from an accident; and that thereby defendant waived all notices and proofs of death required by the terms and conditions of said policy." Defendant excepted to this allegation on the ground that the policy contained the clause set out above, and "that said notice is a condition precedent, and that plaintiff cannot recover unless she shows that such notice was given; that no such proof was ever given the defendant, as shown by plaintiff's allegations in said petition; and no affirmative proof of death was ever made as said policy required, as shown by plaintiff's petition." This exception was overruled, which is here assigned as error.

The contention of appellant is that notice as provided in the policy was a prerequisite to a recovery, and that, where such notice and proof of loss are not given, a denial of liability after the prescribed time is not a waiver of such requirement. Whatever merit there might be in this contention if the clause of the policy under consideration was valid, we deem it unnecessary to determine. Said clause contravenes the provisions of our statute, article 3379, Rev. St., which reads: "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable and any stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void." The statute prescribing that such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void, and the clause in the policy fixing a less period, it must be held that said clause is of no force and effect as to the time fixed therein, and the policy must be construed as though no time was specified. Construing the policy thus, the allegation of waiver by denial of liability was sufficient.

It is insisted that the statute fixes 90 days as a reasonable time, and, if the policy fixes a shorter period, it renders that stipulation void, and substitutes therefor the said period of 90 days as to the time of notice. We cannot concur in this contention. The statute clearly expresses the intention of the lawmakers. It leaves it to parties to fix a time for the giving of notice, provided it is not less than 90 days, and where a less period is fixed it declares it void; and there is no intimation that 90 days shall be substituted for the less period named in the contract.

It is further urged that this is not such a claim for damages as is contemplated by the statute, and therefore it does not apply. "Damages are based on the idea of a loss to be compensated, a damage to be made good." In general, damages is "that which is given or adjudged to repair a loss." Mrs. Hudgins sustained loss by the death of her husband. The effect of defendant's contract is to respond in damages in certain contingencies, one of which has transpired. This, we think, brings her claim within the purview of the statute.

The other issue raised by the assignments is that defendant is not liable under the terms of the policy, the evidence failing to show that death resulted from an accidental cause. The policy provided for indemnity in case of death sustained through "external, violent, and accidental means" independent of all other causes. It contained a clause which reads as follows: "This insurance does not cover disappearances, nor war risks, nor voluntary exposure to danger, unless incurred in an attempt to save human life, nor injuries received while attempting to board or alight from a moving conveyance propelled by steam, electricity, or cable (except that in case of injuries received while boarding or alighting from such conveyances while running at a rate of speed not greater than eight miles an hour, the assured shall be covered by clause 1 hereof), nor injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled (anæsthetics administered by a regular physician excepted), nor injuries, fatal or otherwise, received while or in consequence of having been under the influence of or affected by or resulting directly or indirectly from intoxicants, narcotics, vertigo, sleepwalking, fits, hernia, or any disease or bodily...