Norwood v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 03 May 1929
• Docket Number: (No. 1837.)
• Parties: NORWOOD v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: Texas Court of Appeals

16 S.W.2d 842

NORWOOD v. WASHINGTON FIDELITY NAT. INS. CO.

(No. 1837.)

Court of Civil Appeals of Texas. Beaumont.

May 3, 1929.

Rehearing Denied May 15, 1929.

Appeal from Harris County Court; Ben F. Wilson, Judge.

Action by William Norwood against the Washington Fidelity National Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and rendered in part, and reversed and remanded in part.

Sam'l Schwartz, of Houston, for appellant.

J. M. Gibson, of Houston, for appellee.

O'QUINN, J.

Appellant sued appellee in the county court at law of Harris county to recover on an accident insurance policy issued by appellee. The cause was tried to the court without the aid of a jury as an agreed case, under the provisions of article 2177, R. S. 1925. The only question presented to the court was whether under the terms of the policy appellant was entitled to recover for the loss of time on account of an accidental injury resulting in hernia. Judgment was rendered denying appellant the right to recover, and he brings this appeal.

The following agreed statement of facts was filed with the clerk of the court, and is duly certified by the court as that upon which the case was tried:

"Agreed Statement of Facts.

"The parties to the above entitled and numbered cause agree that the following is a statement of facts upon which judgment shall be rendered therein, the controversy being submitted to the court upon same as such agreed statement of facts:

"The plaintiff, William Norwood, is a resident of Harris County, Texas; the defendant, Washington Fidelity National Insurance Company, of Chicago, Illinois, is a private, foreign corporation, engaged in the business of writing accident insurance, among other forms of insurance, and at all times material to this controversy was duly authorized to transact business in the State of Texas, by virtue of a permit issued to it by the proper officials of the State of Texas.

"That on or about the thirteenth day of December, A. D. 1926, in consideration of the payment by plaintiff of all dues and premiums charged by it, the defendant issued and delivered to the plaintiff a certain policy of insurance, No. X513720, which is hereto attached, marked Exhibit `A.'

"That on or about the 28th day of February, A. D. 1927, while plaintiff was engaged in the course of his employment as a common laborer, assisting another employee in lifting a heavy piece of timber, he accidentally received and sustained a hernia, and as the direct and proximate result of his said injury was immediately, continuously and totally disabled from performing manual labor or pursuing his occupation aforesaid, for a period of more than twenty six (26) weeks from and after said last mentioned date; that at and prior to his said injury plaintiff was in good health and had never theretofore been afflicted with hernia in any degree or form, and was able to perform his customary duties as a laborer; that at the time of his said injury, said policy of insurance was in full force and effect, and plaintiff had in all respects complied with the terms, conditions and stipulations of said policy of insurance on his part to be performed, and had paid all dues, premiums and assessments therein provided; that in due time plaintiff gave notice of his injury aforesaid, and demanded of the defendant the payment of the weekly indemnity in said policy provided; that thereafter the defendant paid plaintiff the total sum of forty-two ($42.00) dollars, covering the amount due him for the first four weeks, but has failed and refused to pay any further indemnity and has denied liability under said policy; that more than thirty (30) days have expired since demand has been made by the plaintiff for the payment of the balance of the indemnity claimed by him under the terms of said policy, amounting to the principal sum of three hundred and eight ($308.00) dollars; that the defendant has failed and refused and still fails and refuses to pay plaintiff any further sums and plaintiff has been compelled to engage the services of Samuel Schwartz, an attorney at law, of Houston, Harris County, Texas, to bring this suit, and has agreed to pay him a fee of one-half of such amount as may be recovered by plaintiff for services rendered and to be rendered herein, such being a reasonable and proper fee, for such legal services.

"Witness our hands in triplicate originals by our attorneys of record, this 6th day of February, A. D. 1928. Wm. Norwood, Pltff. By Sam'l Schwartz, His Atty. of Record. Washington Fidelity National Ins. Co., Deft. By J. M. Gibson, Its Atty. of Record."

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