Travelers' Ins. Co. v. Scott

• Decision Date: 29 November 1919
• Docket Number: (No. 9185.)
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. SCOTT et al.
• Court: Texas Court of Appeals

Page 53

218 S.W. 53

TRAVELERS' INS. CO. OF HARTFORD, CONN., v. SCOTT et al.

(No. 9185.)

Court of Civil Appeals of Texas. Ft. Worth.

November 29, 1919.

Rehearing Denied January 10, 1920.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by Mrs. Elizabeth Scott and others against the Travelers' Insurance Company of Hartford, Conn. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Thompson, Knight, Baker & Harris, of Dallas, for appellant.

Miller & Miller, of Ft. Worth, for appellees.

CONNER, C. J.

This suit was instituted in the district court of Tarrant county on May 31, 1918, by the appellees, as independent executors of the will of Winfield Scott, deceased, against the appellant, to recover upon a certain policy of insurance held by Winfield Scott in his lifetime.

The plaintiffs alleged, in substance, that on October 15, 1910, the appellant company, in consideration of a premium to it then paid, executed and delivered to the deceased, Winfield Scott, its policy of insurance of that date, by the terms of which it agreed and bound itself to indemnify the said Scott in the sum of $5,000 against loss by reason of the liability imposed upon him by law for damages on account of personal injuries received by persons in consequence of the negligence of the said Winfield Scott, his servants, agents, and employés, in the operation of a cotton gin in the town of Itasca, Tex., from August 12, 1910, to August 12, 1911, and at its own costs to defend suits against him for such damages.

It was further alleged that on September 17, 1910, while said policy was in full force and effect, Mrs. H. T. Shine, a resident of Itasca, Tex., claimed to have received serious personal injuries in consequence of the negligence of the said Winfield Scott, now deceased, his agents, servants, and employés, in and about the operation of said gin, and thereafter, in the month of March, 1912, the said Mrs. Shine brought suit in the proper district court against appellees, as independent executors of the will of the said Winfield Scott, deceased, to recover damages on account of personal injuries; that in the month of November thereafter said suit came on for trial, and before a jury of 12 men the trial resulted in a judgment in favor of Mrs. Shine and against the appellees, in their representative capacities as independent executors, in the sum of $8,500, with interest thereon from that date until paid at the rate of 6 per cent. per annum and for costs. It was further alleged that upon appeal duly prosecuted from said judgment the judgment was affirmed, and that appellees on the 1st day of May, 1918, were compelled and did pay said judgment in favor of Mrs. Shine.

It was further alleged that due demand had been made for the payment of said policy, and prayer was for judgment for $5,000, with interest from May 1, 1918, and for $200 costs, and for $750 attorney's fees paid, and for all costs of suit.

The appellant company answered by general demurrer and general denial and specially pleaded that the policy contained, among others, the following conditions:

"(D) The assured, upon the occurrence of an accident, shall give immediate written notice thereof to the company, or to its duly authorized agent, with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. If thereafter any suit is brought against the assured, he shall immediately forward to the company every summons or other process served upon him. The assured, when requested by the company, shall aid in effecting settlements, securing evidence, the attendance of witnesses, and in prosecuting appeals. The assured shall not voluntarily assume any liability, settle any claim, or incur any expense, except at his own cost, or interfere in any negotiation for settlement or legal proceeding without the consent of the company previously given in writing."

It was further alleged that the condition quoted was material; that it was of the essence of the contract between the company and Winfield Scott, and was a condition precedent to the right of said Scott, or of his executors, to recover against defendant; that, under the policy of insurance declared upon by plaintiffs and under the condition above specified, the assured obligated himself to notify the defendant company, or some of its duly authorized agents, of the accident of which plaintiff herein complains, and upon the occurrence of an accident to give immediate notice thereof to the company or to its duly authorized agent, with the fullest information obtainable, and to give like notice, with full particulars of any claim made on account of such accident; that, notwithstanding such duty and obligation, the assured did not give the defendant company, or its duly authorized agent, immediate written notice of the accident in which Mrs. Shine was injured, or of the claim she made against Winfield Scott; that the assured did not give the defendant company any notice whatever of the accident in which Mrs. Shine was injured until March, 1912, more than 17 months after the accident, notwithstanding the fact that the defendant, his secretary, manager, agents, and employés, had notice and knowledge of the accident in which Mrs. Shine was injured and of the injuries to her, and notwithstanding they acquired such knowledge and notice shortly after such accident. It was further alleged that by reason of such failure to give the defendant notice the defendant company was denied the right and privilege:

(a) To investigate the circumstances of the accident while the matter was yet fresh in the minds of the witnesses.

(b) To settle the case promptly before plaintiff had employed attorneys or incurred expense, if after such investigation such settlement should be deemed advisable by the defendant company.

(c) To promptly investigate the facts of the case and secure and preserve testimony by which such case could be successfully defended.

(d) To investigate the facts of the case and secure and preserve testimony for future defense, while the facts and witnesses were available and accessible. In this connection defendant alleges that parties known to have witnessed said accident died between the occurrence of said accident and the notice to this defendant.

(e) To investigate the nature, character, and extent of the injuries, if any, suffered by Mrs H. T. Shine while said facts were fresh in the minds of parties familiar therewith and to preserve such testimony for the defense of said case.

Upon the trial of the case the court charged peremptorily in appellees' favor, and in obedience to such peremptory instruction verdict was returned in appellees' favor for $5,000 with interest thereon from May 9, 1918, to date of trial at 5 per cent. per annum, aggregating $125, together with $750 attorney's fees paid by appellees, and costs paid by appellees, aggregating $124. In accordance with the verdict, judgment on the same day was rendered in appellees' favor for the sum of $5,999.60, with interest from that date at the rate of 6 per cent. per annum until paid and all costs of the suit. From the judgment so rendered, the insurance company has duly prosecuted this appeal.

The evidence shows without dispute that notice was not given to the appellant company, nor to any of its authorized agents, of the accident to Mrs. Shine which occurred in September, 1910, or of the claim made by her on account thereof until the institution of the suit by Mrs. Shine against the executors of the estate of Winfield Scott in March, 1912.

The view of the trial court upon the question was thus presented in his peremptory instruction, to wit:

"Gentlemen of the jury, the court being of the opinion that the policy herein sued upon did not require notice of the accident until a claim thereunder for damages was made, and the testimony showing without contradiction that notice of such accident was given to the defendant two days after service of citation upon plaintiffs, you are instructed that such notice was in compliance with the policy, and you will return a verdict as follows, to wit," etc.

The charge was duly excepted to, and assignments of error and propositions thereunder here raise the only directly vital question presented in this appeal, that is: Was notice of the accident to Mrs. Shine, as provided in condition D of the policy, upon which appellees sued, necessary to the appellees' recovery? Without stopping to discuss the precise nature of such a condition, we think it must be held that, in the absence of some statutory inhibition, conditions of the kind are upheld. It is true the general rule of construction of contracts of insurance, as of other contracts, is that the conditions are to be taken most strongly against the writer of the policy; yet it is nevertheless true that a contract must be construed as a whole and be given a construction, if it can be reasonably done from the terms used and from the instrument as a whole, that will give effect to the manifest intent of the parties. The Supreme Court of the United States, in the case of Imperial Fire Ins. Co. v. County of Coos, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231, thus declares the rule:

"Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy or policies, embodying the agreement of the parties. For a comparatively small consideration the insurer undertakes to guaranty the insured against loss or damage upon the terms and conditions agreed upon, and upon no other, and when called upon to pay, in case of loss, the insurer therefore may justly insist upon the fulfillment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer's liability, and in order to recover the assured must show himself...