*1 & 287 Cо. v. Parker Co. 1908.] Life Insurance Company. v. J. B. Parker & Life Aetna Insurance February Decided No. 1175. —Insurance—Penalty Delay Payment. Stats., imposing Art. 3071 cent and attor- Rev.
ney’s fee for failure to insurance within pay life health the time 294.) 293, specified, apply (Pp. does to accident insurance. —Insurance—Subrogation. subrogated is not entitled to negligence to the claim An causing injury, pay- on indemnity stipulated policy; can it defend ment nor released such insured because he has settled with and com- claim=of 293, 294.) (Pp. pany.
Questions the Cqurt for the certified Civil First District, in County. from Smith appeal Lawther, in error. P.
Harry The provisionthe stat- plaintiff ute fee in is as imposing attorney’s follows: Stats., 1895: cases Art. “In all where loss oc- liable curs and the life or health therеfor shall fail the same within the policy, after demand therefor, such shall be liable to made holder of such loss, in addition amount of the 12 cent to the on policy, loss, with all reasonable the amount such together fees attorney’s for the collection of such loss.” prosecution and
This statute does not to accident apply insurance. Fidelity and Cas- Co. Fed. v. 107 ualty Dorough, Rep.,
A contract of other than life, that' of and accident where death, results in one of injury 1 indemnity. Ins., on Joyce see. 24. In accident insurance where to the injury person does' not pro- death, duce contracts indemnity. policies clearly 3 Suth. Dam., 104; Ins., on sec. 1 on sec. 271. Joyce Accident fire than insurance, it is a since provision indemnity, except death. Bouvier’s Dic., 61; Rev., Law Rawles Niblack on Ben. Soc. Acc. Ins., secs. 363-420. the insurance contract is one
Where of indemnity and the insurer the insured amount of his loss, the full former pays will be entitled the latter person by whose the loss was occasioned. Sheldon on 4 Subrog., 229; see. Ins., 3574; ed., 454; see. 2 3 May Houston Direct Co. v. A., Texas, 1; Nav. Insurance N. 89 v. Wager Providence Co., S., 99; Insurance Hall v. Co., Wall, Nashville 367; Louis, A. T. Railway Co. v. Fire Assn. of Philadelphia, 18 W. v. Swarthout & N. W. Chicago Railway Co., Wis., Phoenix Insurance Co. v. Pennsylvania Co., Rep. Law. Court, Ohio Ann., 405; v. Ohio Circuit Sun Oil Co. 96 355; Home Mut. Insurance Co. v. R. & Co., O. N. Ore., 569; Bur Rodocanachi, nand v. Cases, 339; Q. App. Tibbitts, Darrell *2 Div., 560; Q. Castellain v. Preston, 11 Div., 380. When an insurance company pays the for a loss insured occasioned fault of railroad company, and insured afterwards receives the amount from the railroad satisfaction of his damages, he insurers, holds it in trust for and they recover it from him may suit in 4 3574; see. equity. Monmouth, etc., Insur Hutchinson, 107; ance Co. v. 21 N. J. Hart Eq., v. Western Railway . Co., Metc., 13 99 By insurer’s m destroying right a full subrogation, giving release of all claims whose act has caused wrongful an action on bars damage, Draemel, 16 104; loss. v. Lett Insurance Dilling Daly, v. Co., Hun, 570; Storrow, 52 Insurance Co. v. 5 Paige,
If one who insured property, destroyed by negligence of a third with and receives of his loss from such payment settles person, insurers releases the to him on his person, thereby he Co., Wis., Mutual 101 Sims v. Insurance policy. the insured the insurer’s destroyed right
Where be there could no further from the wrongdoer because v. German tort, held he could not recover Paсkham In- his. Law, Ann., 828, Co., 50 and brief. surance Rep. motion rehearing, argument support [From of the Court of in adopting erred overruled.]—The and in that in holding certified question, on said second Civil Appeals concerned, so far as fire or marine insurance: that to life to either than R., L. v. in Bradburn Railway Company, announced principle on the Ex. had some bearing doctrine, it is no defense erred holding
The court the loss the owner of the prop to a insurance, had on the some.bearing ques been indemnified has erty with reference fire insur is well established That doctrine tion. Ann., 604; v. New Miller, Regan 31 Law. Rep. Anderson v. ance. Boston M. Conn., 124; Smith v. & Rail Co., 60 E. Railway York N. & T. H. H., v. Evansville 25; Railway N. Co., Cunningham way R. Railway Co., York C. & H. 478; v. New Ind., Collins Co., D. 609; v. C. G. T. J. affirmed, Y., Hagan Chicago, 71 N. Hun, Co., E. Mich., Railway v. Morris & Weber Railway L., N. J. and has beеn as that of subrogation, is as well settled That doctrine doctrine, latter that have announced the the same courts laid down same have been announced instances both many principles and in Conn., 124. E. York & N. Railway v. New decision. Regan not only They are they harmony. are opposed; The doctrines v. Parker & Co. Lire 1908-1 stand together, but both bottomed same viz., princiрle, that in the order of ultimate that of the liability, wrongdoer primary and that insurer is secondary. Furthermore it is held addi tion that no exists in favor equity and that he has no wrongdoer, property in the proceeds insurance. The Galveston Court of Appeals, whose decision herein this court has itself approves, applied doctrine accident insurance. E. Tyler Co. Rаsb 13 Texas Civ. bery, 185. So App., have other American Pitt Courts. C. & sburg St. L. Co. v. Ill., 138. Yet the Thompson, Gal veston court did not consider that the rule that action for death caused by defendant’s negligence, money received from acci by plaintiff dent insurance held by deceased could not set off against plaintiff’s damages, had any bearing upon the subroga *3 tion herein contended for. It based its decision other upon grounds. The court erred in the the approving opinion of Court of Civil Ap- that denied to peals the of appellant subrogation by claimed the upon of want of ground of loss or “identity” con- damage. Upon motion for sidering appellant’s the court became rehearing, doubtful of conclusion, the correctness of its and one first in- being of question the stance and of certified the same to this court. importance,
Nowhere in the books is it laid that the down doctrine subrogation to an insurer applied the of the depends upon identity loss or dam- the Nor is reason the -rule age. based loss upon identity or not is whether the damage. question loss insured is against identical the loss with occasioned nor by wrongdoer whether the elements of loss which insurer and are by wrongdoer respectively liable are the same. But does loss insured form against any part ? damage Does it constitute wrongdoer any one of so, If to that liability? insurer, elements extent the and payment, obligation debt pays liquidates pri- liable, marily and to that extent he is entitled to be owner such for the rule rights against is that palrty; when prop- is lost or the fault or erty through of an- damaged negligence other the order of that ultimate liability, party through fault or the loss and was occasioned primary, insurer secondary.
The doctrine is bottomed on the fact the insurance contract one and the be considered when an question indemnity; application invoked, fire, is not whether the marine, the rule insurance accident, or but A decision indemnity. whether the contract be one of which leaves this out of fails reach consideration matter; the root of the neither will it the law on sub square in all the text and When the ques laid down books decisions. ject to fire tion as to with reference first subrogation pressed and to marine doctrine decision, was contended applied Wall., fire insurance. Hall v. Nashville C. Supreme—19. Vol. 367. But held the appli- Justice doctrine through Strong and, fire cable to has been which upon reasoning approved followed for in the authorities set out fifty years, quoted brief, then for the concluded: “There is no reason appellant’s and of the assured rights insurers marine policies of a like subro- sea, carrier against support which does not exist in case contention of an insurance fire on land.” Our gation death, is, here being accident not resulted in having expressly no reason exists indemnity, to all books one of according fire to of insurers by policies against assured which do not exist in a like subro- a carrier support time, in case an insurаnce result of an gation one accident. Is this contract so. indemnity? say The books one of Dam., Suth. on sec. 271. If it be not, why the doctrine of If indemnity, does not subrogation apply? not? for appellee. Brooks, noThere islegal and N. W. Morgan
A. Dulce insurance,” and distinction “health insurance” and “aeecident between Stats., 1895, makes life health art. Rev. fees cent damages liable for companies liable, which such applies loss for companies failure to pay any to a as well as' such a loss on an accident indu* Stats., arts. 3061 to a life health S. W. Casualty sive, Logan Fidelity chap. *4 Hicks, 56 S. Life Insurance Co. v. W. Rep., Aetna Rep., an injury for liability company negligently causing of a railroad the same as that of an accidеnt insurance company to the is not solely, the loss of time has insured the injured person against to be to not entitled company such" insurance whose through railroad injured party against company rights was occasioned. injury it of its con the payment by an insurance company, upon To give a right time occasioned by personal injuries, tracted liability through insured аgainst to the to be subrogated be done, against was would public injury act personal Civ. App., E. Co. v. Rasbberry, S. Railway Tyler Louis, Philadelphia, v. Fire Assn. of 18 W. A. & T. Rep., OF CIVIL APPEALS. OF COURT
OPINION B. Parker brought by This actionwas Garrett, J. Chief Justice. Conn., Hartford, Aetna Life Insurance Company, & Co. received indemnity a for injuries to stipulated the defendant the life certain a during assigned and which been to had Shelvy, William company Cо. v. Parker Go. Life 1903-1 to by the said and as a the further sum Shelvy plaintiffs; penalty of 12 cent of the amount of the due under said indemnity fee, $50; total and a reasonable which was attorney alleged amount for which and costs. judgment prayed $371 aggregated intervened in the suit Shelvy as plaintiff alleged amount due under the J. assigned plaintiffs Parker & $225; Co. to secure an indebtedness to them of hе adopted in the plaintiffs joined pleadings prayer judgment against the defendant, and asked that the balance after amount deducting him to be directed to to The de- him. plaintiffs fendant as defense to a pleaded upon the claim Shelvy claimed, on account of the for which indemnity was the settlement of with the deprivation and the release it from all said сompany injury. A demurrer so much of the answer as set this de- by plaintiffs fense was sustained and was stricken out. as injured, while the service St. Louis Southwestern alleged, Texas, a turntable said getting caught cleaning the tank an and was disabled for engine, twenty-eight five weeks and for which time the days, was liable week, $10 at the rate to $287.14. amounting Judgment all was rendered favor of for. plaintiffs ques- Threе prayed tions arise the record: 1. Does Statutes, article 3071 of the Revised the recov- authorizing
ery cent of the loss fee for fail- penalty ure of the insurance within the ? policy, apply Statutes re- imposing penalties ceive strict construction A penalty. very clear distinc- tion life and health made between and accident companies provisions of the Revised Statutes to insurance. relating Article found in imposing chapter entitled General Provisions, but dealing foreign insurance companies. Chapter 'drome life and accident concerning con- companies,” but tains no for a provision failure to make pay- prompt ment. In the case of Aetna Life Insurance Co. Hicks, 56 S. W. 87, in court affirmed a аn accident *5 for a Stats., policy by art. provided the statute applicability was not and raised only was on. The constitutionality passed question does not appear ever to have been decided by the or Supreme courts appellate of this State; but the Federal Circuit Court for the Fifth Circuit had decided the precise question and held that the statutе no has appli- cation to accident companies. Fidelity Co. of Casualty Hew York v. Dorough, Fed. 389. The in the case from the quotes statutes and gives reasons for the decision which we think are conclusive therefore, We opinion, 96 the court below erred in Rev. adjudging penalty provided Stats., art. the defendant. err Did demurrer to the sustaining plaintiff’s
answer defendant’s sеtting to the claim of subrogation Shelvy against and its reason of the by discharge fact that it had been of "this deprived act in right by Shelvy’s settling with and the railway him? releasing further The of the insurer to the claim of the insured for loss or covered of fire caused damage property by policy of the by carrier is well established. 2 on negligence May sec. on Ins. Subrog., Sheldon Providence Wager ¿But S., there is an essential distinction between a liability for loss of which has been that for on insured and property damages account of inflicted of another. injuries by person negligence In the instance, case of the destruction of fire the first by property or loss which damage has caused that indem by carrier and nified is identical. It is the value that has been But destroyed. n where has received person personal injuries
another, several elements enter into the estimate of besides for loss of time mere contracted for in the acci- stipulated indemnity dent and the loss is no In there policy, means identical. the one suffering, for mental and physical full be included may compensation etc., and in some in- to earn money, time, diminished capacity loss sum for the other a stipulated damages, stances punitory even for that. not be full or may may of time only the insured whether indemnify accident undertakes policy The or not, while the corpora- or of negligence are the result injuries negligence, held liable only can be tion inflicting loss the case estimate of the enter intо the since so elements many other, want- of the there is into or form not enter one that do insurer to would entitle the loss that identity damage ing him, claim against on payment j admitting court erred whether the to consider It remains thereon in rendering judgment of insurance the policy evidence The de- variance. petition it on the ground the objection over The Shelvy. policy to William 188,695 issued Ho. scribed 138,695, Selvey. issued to William Ho. introduced evidence 188,695 Ho. accident policy assignment declared petition in evidence was introduced the assignment Shelvy; to William Plain- Parker. to J. B. 138,695 Ho. and that name was William Shelvy, that his tiff testified defendant’s one delivered to in evidence was the introduced transferred and had he had premiums and on agent, introduced the policy describes correctly & Co. The judgment Parker numbers, together names similarity in evidence. The transaction, no doubt leaves identity the evidence as to the plaintiff one issued the identical sued *6 Co. v. Pabkeb & Co. Life IhsubAhoe ¿90S.] and the defendant conld not have been misled variance, and if it could not have been misled and will judgment from an- protect other suit the variance not material. Bank v. Stephenson, Texas, of the court below affirmed to judgment except as penalty cent on the amount of the fee, and the as per indemnity attorney reversed,
to it is will be judgment finally rendered here in for favor of the the amount of the plaintiffs indemnity only. Affirmed in reversed part.
Delivered November the First GAINES, Chief Justice. The Courtof Civil for fol- District have certified for our determination the Judicial Supreme lowing questions:
“This action was J. B. Parker & brought by the Aetna Hartford, Conn., Life Insurance to defend- Company ant a for injuries received stipulated indemnity during the life of accident insurance of a certain company to to Shelvy and which the said assigned by Shelvy and as a plaintiffs; the further sums of 12 cent amount due under attorney said and a reasonablе fee, $50; which was alleged total amount for which was $371 and prayed aggregating costs. William intervened Shelvy the suit as that the amount due under the plaintiff alleged had been assigned to J. B. Parker & Co. in- plaintiffs to secure an $225; debtedness them he adopted pleadings plaintiffs joined prayer judgment against defendant, and asked that the balance after the amount deducting him tо the plaintiffs be directed to be to him. The defendant as a defense to pleaded claim of Shelvy against company account indemnity was claimed, and its deprivation the settlement the railway and the company release it from all liability for said A demurrer injury. by plaintiffs to so much of the answer as set defense was sustained and was stricken out. injured, while in alleged, the service Louis Southwestern Eailway Texas, by getting in a caught turntable said the tank of an cleaning and was engine disabled for weeks and twenty-eight five for which days, time the liable to' indemnity at rate of $10 week, amounting $287.14. Judgment was rendered in all favor of plaintiffs for. prayed "1. Does article 3071 of the Statutes, Eevised re- authorizing covery cent of the loss and an fee as a failure within the insurance? policy apply
“2. Did the court err sustaining demurrer to the plaintiffs’ *7 96 Texas [February. to the claim answer defendant’s setting up and its reason railway discharge by act in settling fact this deprived Shelv/s him?” from further with releasing of an opinion The court copy have certificate accompanied inferred, is to be chief from which it justice, in case deliverеd the judgment that after had affirmed they certifying questions rehear- it in and motion for trial in and reversed part, part had been filed. ing be answered both should We questions opinion Court of Civil first, Appeals opinion As to the negative. our is based. ruling states the satisfactorily grounds upon of that court also the second adopt opinion question.. We said, in to what is there we think it is to be observed But addition concerned, that so far as life than it to either marine or fire insurance; and it has been held that it does case of apply S., 754; Insur- Brame, insurance. Insurance Co. v. Connecticut case think also that the Conn., ance Co. We R. Ex. has some 1) bearing of Bradburn v. Co. (L. that “in an action there decided is point plain- defendant’s sum received negligence, intо account on an can not be taken tiff accidental insurance policy reduction of damages.” point. case finding directly
We have not succeeded ERROR. OF CLERICAL CORRECTION in this of the action of the Court speaking In our we said, certifying ques- inadvertently Civil Appeals “after had affirmed the the trial court tions they clearly it in etc. The use of the word “after” is a clerical reversed part,” As been, have etc. certifying error. It should questions,” “before stands, it leads the inference that the Court now the opinion case while pending had decided the Civil We deem court, injustice. does that court therefore “after” read instead of so “before” to correct our opinion proper so It ordered. just quoted. accordingly in the phrase Filed March