Texas Short Line Ry. Co. v. Waymire

• Decision Date: 18 October 1905
• Citation: 89 S.W. 452
• Parties: TEXAS SHORT LINE RY. CO. v. WAYMIRE et al.
• Court: Texas Court of Appeals

89 S.W. 452

TEXAS SHORT LINE RY. CO. v. WAYMIRE et al.

Court of Civil Appeals of Texas.

October 18, 1905.

Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.

Action by A. Waymire against the Texas Short Line Railway Company, in which the Maryland Casualty Company was interpleaded as a party defendant. From a judgment in favor of plaintiff and the Maryland Casualty Company, defendant the Texas Short Line Railway Company appeals. Judgment in favor of plaintiff reversed, and judgment in favor of the Maryland Casualty Company affirmed.

Wylie A. Davidson and J. M. McCormick, for appellant. Jno. M. Duncan, Wynne & Blanks, West, Chapman & West, and Theodore Mack, for appellees.

JAMES, C. J.

This action was by Waymire; he alleging that he was an employé of appellant, that appellant furnished him with a defective rope and tackle with which to move a boiler, and that while using same the rope parted at a time when plaintiff was straddling a prize pole placed under the boiler, which caused the boiler to fall on the pole, which struck plaintiff and injured him. He recovered a verdict for $1,000. To the petition defendant pleaded a general denial, contributory negligence, assumed risk, and that, if plaintiff was a servant of appellant, it was his duty to inspect and test, or have inspected and tested, the rope and tackle for protection of those working under him, and that his injury resulted from his failure to perform such duty, and further pleaded that plaintiff was an independent contractor. Defendant also interpleaded the Maryland Casualty Company of Baltimore, alleging that it had issued defendant its policy of insurance in the sum of $5,000, indemnifying defendant against damage by occasion of personal injuries sustained by its employés, and asked that defendant recover over against said casualty company on said policy, in the event plaintiff should recover. The policy was annexed as an exhibit, and showed that the insurance was subject to certain conditions, which were to be construed as conditions precedent, among them the following: "(1) The assured, upon the occurrence of an accident, shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company, at Baltimore, Md., or to its duly authorized agent. He shall give like notice, with full particulars of any claim that may be made on account of such accident, and shall at all times render to the company all co-operation and assistance in his power. (2) If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy, the assured shall immediately forward to the home office of the company every summons or other process as soon as the same shall have been served on him, and the company will at its own cost defend against such proceeding in the name and on the behalf of the assured, or settle the same, unless it shall elect to pay the assured the indemnity provided for in clause A of special agreements as limited thereon. (3) The assured shall not settle any claim, except at its own cost, nor incur any expense, nor interfere in any negotiation for settlement, or in any legal proceeding, without the consent of the company previously given in writing; but he may provide at the time of the accident such immediate surgical relief as is imperative. The assured, when requested by this company, shall aid in securing information, evidence, and the attendance of witnesses, and in effecting settlements and in prosecuting appeals. * * * (7) No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment, within 60 days from the date of such judgment and after trial of the issue. No such action shall lie unless brought within the period within which a claimant may sue the assured for damages, unless at the expiry of such period there is such an action pending against the assured, in which case an action may be brought against the company by the assured within 60 days after final judgment has been rendered and satisfied as above. The company does not prejudice by this clause any defense to such action which it may be entitled to make under this policy." This pleading also alleged that immediately upon the institution of this suit defendant notified the casualty company of the suit and of the claim of plaintiff declared thereon, and that the casualty company thereupon denied all liability under said policy to account to this defendant for any recovery which defendant might suffer by occasion of plaintiffs' suit herein, and by this waived the performance by this defendant of any other conditions precedent which may be contained in said policy, deferring action thereon by this defendant, and whereby said cross-defendant became liable, notwithstanding said conditions, to be impleaded by this defendant to have its liability under said policy litigated and determined. A general demurrer by the casualty company was presented to the pleading making it a party defendant, which was sustained, and the casualty company dismissed.

Appellant, complaining of this ruling, insists that the denial of its liability was a waiver of the provisions of the seventh clause. The contention is based on decisions which hold that such refusal or denial is a waiver of certain conditions in policies, such as appraisement, notice, and proof of loss. They are not applicable. Clause No. 7 is a special agreement that no action should lie against the insurer on this policy until after the injured party had received judgment against defendant. Denial of its liability would not be a waiver of this provision. The cases holding that because certain acts became useless when the insurer denies his liability, and therefore they are waived, furnish no reason for holding that the insurer can be sued in advance of the time unconditionally provided in the contract for that purpose, upon a mere denial of its liability. The contract here was plain. The policy did not entitle defendant to indemnity, except by reason of a judgment recovered against him. An action against the insurer did not lie until then. So far as our decisions have gone is that, when an insurer denies his liability on a policy, it waives such acts required of the insured as are designed to enable the insurer to determine whether or not it will pay and what it will pay. After it denies its liability in toto, it announces in effect that it matters not that the required acts be performed; for the insurer has already determined that it will pay nothing. But by denying its liability the insurer in this case did not subject itself to have payment of the policy demanded of it at an earlier time than the policy provided for such demand. This is so, unless clause No. 2 makes a difference in the case. This obligated the company, as soon as summons and other process had been forwarded to the home office, to defend the suit at its own cost on behalf of and in the name of the assured. This, we think, was not a contract to become a party to the action, nor an agreement that it might be made a party to the action...