Wilkinson v. Travelers' Ins. Co.

• Decision Date: 11 March 1903
• Citation: 72 S.W. 1016
• Parties: WILKINSON v. TRAVELERS' INS. CO.
• Court: Texas Court of Appeals

72 S.W. 1016

WILKINSON v. TRAVELERS' INS. CO.

Court of Civil Appeals of Texas.

March 11, 1903.

Appeal from Red River County Court; J. R. Kennedy, Judge.

Action by A. L. Wilkinson against the Travelers' Insurance Company. From a

judgment granting insufficient relief, plaintiff appeals. Affirmed.

N. P. Doak, for appellant. W. S. Thomas, for appellee.

JAMES, C. J.

On January 8, 1902, appellant obtained two accident policies, in terms the same, covering the same period, in defendant's company. On January 12, 1902, he was in the Indian Territory on a hunting expedition, and, while helping to bring in a log to make a fire, he slipped and fell, and both his hands were caught under the log, mashing the nail on the second finger of each hand. He claimed on each policy the sum of $12.50 per week provided for cases in which the assured was by the accident, "independently of all other causes, immediately, continuously, and wholly disabled and prevented * * * from transacting any and every kind of business and from engaging in any kind of occupation." The policies contained the provision, after stating that the policy shall be wholly void as to persons under 18 and over 65 years of age, employés of railroads and other public conveyances, etc., that "insurance on any person for any single period of time under this company's ticket is limited to one ticket in the sum of $2,500.00 indemnity for injuries resulting in death, and $12.50 weekly indemnity to males for wholly disabling injuries, exclusive of the extra indemnity provided in clause `d' [of the policy], and the company will return on demand to the insured or to his or her executors, administrators or assigns all premiums paid for tickets in excess thereof." The premium paid for each policy was $3. Plaintiff testified: "I was hurt very badly, and I could not attend to all the duties incumbent on me as railroad agent. I could not stamp the tickets. I could not stand the jar. I could not pull the tickets out of the case, as it took both my hands, and they were both injured. I could not make out bills of lading, nor shipping directions, nor seal up or open the cars. All of this was part of my duty. I could write my name, and did sign checks during the time I was injured. I could go around and could see as well as before the injury. Neither my eyes nor my legs were in any way injured. I have a little farm on Cuthand creek, and while I was unable to work at the depot I did go down there two or three times. I could only look on, however. Could not work myself. I do not follow farming for a living. In fact, I have never made anything at it, and it has been keeping me behind to support the farm from my work as railroad agent. I do not work this farm myself, but rent it out to tenants, except a part, which I am cultivating with hired labor. While I was injured I was able to go out there, and look after my tenants, and see that my hands were working. Yes, I was agent for the defendant a while, and sold tickets for it. I did not notice the clause in the policy or ticket limiting the amount to be recovered to one ticket until after I was injured. Yes, clause of the policy or ticket says that only one ticket will be issued to one person for the same time; but the agent at Clarksville did issue two to me, and I paid him for both of them. No, I never demanded the return of the amount paid for one of the policies or tickets, because it had been the custom of the company to issue more than one ticket to one and the same party covering the same time. I have taken out two several times myself, and the company never proposed to return the amount overpaid, but I never demanded it. I get $125.00 a month as railroad agent." Defendant's answer filed in the justice's court pleaded a general denial, and...