Royal Casualty Co. v. Nelson

• Decision Date: 22 January 1913
• Parties: ROYAL CASUALTY CO. v. NELSON et al.
• Court: Texas Court of Appeals

153 S.W. 674

ROYAL CASUALTY CO. v. NELSON et al.

Court of Civil Appeals of Texas. San Antonio.

January 22, 1913.

Rehearing Denied February 19, 1913.

Error to Bexar County Court for Civil Cases; Geo. W. Huntress, Judge.

Action by Rebecca Nelson and another against the Royal Casualty Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

C. A. Keller, of San Antonio, for plaintiff in error. James W. Brown and P. L. Ripley, both of San Antonio, for defendants in error.

TALIAFERRO, J.

This is a suit by Rebecca Nelson, joined by her husband, in the county court of Bexar county, to recover $300, alleged to be due her by the Royal Casualty Company by reason of a contract of insurance issued by the defendant to David Nelson, son of plaintiffs. The plaintiffs set out the insurance policy verbatim and alleged that David Nelson had complied with all its terms. They alleged that he was injured while engaged in the pursuit of his usual occupation, on December 27, 1910, and that as a result of such injuries he died January 29, 1911. They further alleged that defendant was duly, and in proper form, notified of the injury to deceased and of his subsequent death, and that by reason thereof the defendant had become liable upon its contract to pay to plaintiff Rebecca Nelson, beneficiary named in said policy, the sum of $300 stipulated in said policy. Defendant interposed a general demurrer and one special exception, and answered by general denial. The court overruled defendant's exception, and, upon the trial, there was a verdict and judgment in favor of plaintiffs for $327.35 and costs.

In its first assignment of error plaintiff in error contends that the court erred in not sustaining its special exception to the defendant in error's petition. This exception is as follows: "This defendant specially excepts to the petition for the reason that under the `General Agreement' under section `M' of the policy sued upon herein it is provided that written notice of an injury, fatal or nonfatal, or of any illness for which claim may be made, must be delivered to the company at St. Louis, Mo., within 10 days of date of accident or beginning of illness, and failure on the part of the assured, or of the beneficiary, to deliver such notice within 10 days from the date of injury, beginning of illness or death, shall invalidate all claims under this policy, and furthermore that notice to the agent does not constitute notice to the company."

Section "M" of the policy contract contains the stipulation set out in plaintiff in error's assignment, and, in the absence of statutory control, would prevent a recovery in this case. But the question of notice has been settled adversely to appellant in this state by article 3379, R. S. 1895, as amended by Acts of 1907, p. 241, § 1, which reads as follows: "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 such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void, and, when any such notice is required, the same may be given to the nearest, or to any other convenient local agent of the company requiring the same." In the case of Maryland Casualty Co. v. Hudgins, 72 S. W. 1047, the court, in discussing the sufficiency of notice in a case very similar to this one, said: "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. * * * 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 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...