State Farm Mut. Auto. Ins. Co. v. Hinojosa, 3847

• Decision Date: 18 May 1961
• Docket Number: No. 3847,3847
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Florencio HINOJOSA, Individually and as Trustee for the Fidelity & Casualty Company of New York, Appellee.
• Court: Texas Court of Appeals

Page 914

346 S.W.2d 914

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Florencio HINOJOSA, Individually and as Trustee for the

Fidelity & Casualty Company of New York, Appellee.

No. 3847.

Court of Civil Appeals of Texas, Waco.

May 18, 1961.

Rehearing Denied June 8, 1961.

Hicks, Dollahon, Boss & Wohlt, Houston, for appellant.

Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., Houston, for appellee.

WILSON, Justice.

Hinojosa and his employer's workmen's compensation carrier recovered a judgment for his personal injuries in an automobile accident, against Yeary, appellant's insured under an automobile liability policy. See Yeary v. Hinojosa, Tex.Civ.App., 307 S.W.2d 325, writ ref. n. r. e., as to the history of that litigation.

Yeary failed to pay the judgment, and Hinojosa brought this action against appellant, as Yeary's insurer, to recover the amount of the judgment. Appellant pleaded as a defense the breach by Yeary of a policy condition requiring him to give notice of an accident 'as soon as practicable.' Hinojosa pleaded prompt notice was given by Yeary as soon as practicable, and alternatively, that 'he was reasonably justified in not reporting the accident sooner since he thought he was not involed therein.' The record is undisputed that Yeary first gave appellant notice of the accident in which Hinojosa was injured 40 days after it occurred. The jury found Yeary gave appellant notice as soon as practicable.

Appellant says the record shows Yeary failed to give timely notice, as a matter of law. We agree. Yeary admitted he knew immediately that his car had struck Hinojosa and that the latter was taken to the hospital with a broken leg. it does not appear he thereafter talked to Hinojosa. Yeary was 'given a ticket for reckless driving', and after a trial in corporation court, was found not guilty. He testified he 'thought that was all of it. I thought they had set me free on the deal.' He did not report the accident sooner 'because I did not think the accident was my fault.' He further testified, 'In the first place I didn't know I was supposed to report it right away.' We think the notice 40 days after the accident was not given as soon as practicable, as a matter of law. American Fidelity & Cas. Co. v. Traders & Gen. Ins. Co., Tex.Sup., 334 S.W.2d 772, 776; Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 97; Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 146, 110 A.L.R. 529; Texas Glass & Paint Co. v. Fidelity & Deposit Co., Tex.Com.App., adopted, 244 S.W. 113, 115; Yorkshire Indem. Co. of N. Y. v. Roosth & Genecov Production Co., 5 Cir., Tex., 252 F.2d 650, 653; National Surety Corp. v. Diggs, Tex.Civ.App., 272 S.W.2d 604, 608, writ ref. n. r. e.; Trinity Universal Ins. Co. v. Weems, Tex.Civ.App., 326 S.W.2d 302, writ ref. n. r. e.

The jury found, however, that appellant investigated the accident before taking a non-waiver agreement from Yeary, thereby waiving the notice provision; and that subsequent investigation made by it was not 'made under the terms and conditions of the non-waiver agreement.' Appellant says there is no evidence to support these findings, and they are contrary to the overwhelming preponderance of the evidence. Yeary reported the accident to appellant's agent after he received a demand letter from Hinojosa's attoneys. He thereafter executed a reservation of rights agreement to the effect that any action taken by the company in investigating the accident should not be a waiver of the conditions of the policy.

The only evidence pointed to by appellee, or which we have found, as to any investigation by appellant prior to the agreement is that it took a written statement from insured concerning the accident and his failure to report it. The statement was signed at approximately the same time...