Tarkington v. Continental Cas. Co.

• Decision Date: 09 December 1960
• Docket Number: No. 16182,16182
• Citation: 341 S.W.2d 490
• Parties: Wllson TARKINGTON, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 490

341 S.W.2d 490

Wllson TARKINGTON, Appellant, v. CONTINENTAL CASUALTY COMPANY, Appellee.

No. 16182.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 9, 1960.

Rehearing Denied Jan. 6, 1961.

Fritz & Vinson, and John R. Bryant, Dallas, for appellant.

W. B. Handley, Dallas, for appellee.

MASSEY, Chief Justice.

Continental Casualty Company, hereinafter termed Company, issued a Hospital and Nurse Expense Policy to Wilson Tarkington, hereinafter termed appellant. Between dates of October 9, 1955, and November 3, 1955, while confined to hospitals on account of sickness, he incurred expenses alleged to have been covered by the policy. According to appellant's allegations, he gave notice to the Company of such expenses, made claim therefor, and filed proofs of loss under the provisions of the policy, but liability was denied. After a little longer than four years' time after the last date of the aforesaid hospital confinement and on date of November 9, 1959, appellant brought suit against the Company. The policy of insurance was plead and attached as an exhibit to the petition for relief.

The Company moved for summary judgment, setting up the following provisions copied from the policy: 'Legal Actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of three years after the time written proof of loss in required to be furnished.'

Appellant did not amend his pleadings. He answered the motion for summary judgment by filing numerous exceptions thereto, coupled with a general denial of the allegations of the motion.

Upon hearing, summary judgment was entered for the Company and that appellant take nothing. From this judgment an appeal was taken to this court.

Judgment affirmed.

Appellant contends that the trial court erred in not sustaining exceptions filed to the Company's motion for summary judgment. The record does not show that they were ever presented to the trial court or that the court took any action thereon. Under these circumstances the exceptions must be considered to have been waived. Texas Rules of Civil Procedure, rule 90.

Appellant, referring to 4 McDonald, Texas Civil Practice, p. p. supp., p. 41, 'Judgments', sec. 17.26.3, 'Summary Judgments (II) Reply to Motion', points out that author's comment that where a Motion for Summary Judgment is directed solely to pleadings, it is closely analogous to a special exception. Thereupon appellant founds an argument that a special exception should point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality or other insufficiency in the allegations in the pleadings, in accord with the provisions of T.R.C.P. 91. It is believed appellant overlooks the fact that pursuant to the provisions of T.R.C.P. 93, subd. (m), that when the Company did not plead notice and proof of loss or claim for damage had not been given as alleged by appellant the legal presumption obtained...