72 S.W. 168 | Tex. | 1903
Lead Opinion
This action was brought by J.B. Parker Co. against the Aetna Life Insurance Company, of Hartford, Conn., to recover of the defendant a stipulated indemnity for injuries received by the insured during the life of a certain policy of accident insurance issued by the company to William Shelvy, and which had been assigned *291 by the said Shelvy to the plaintiffs; and as a penalty the further sum of 12 per cent of the amount of the indemnity due under said policy and a reasonable attorney fee, which was alleged to be $50; the total amount for which judgment was prayed aggregated $371 and costs. William Shelvy intervened in the suit as plaintiff and alleged that the amount due under the policy had been assigned to the plaintiffs J.B. Parker Co. to secure an indebtedness to them of $225; he adopted the pleadings of plaintiffs and joined in the prayer for judgment against the defendant, and asked that the balance after deducting the amount due by him to the plaintiffs be directed to be paid to him. The defendant pleaded as a defense to a recovery upon the policy the right of subrogation to the claim of Shelvy against the railway company for damages on account of the injuries for which indemnity was claimed, and its deprivation of the right by the settlement of Shelvy with the railway company and the release of it from all liability for said injury. A demurrer by plaintiffs to so much of the answer as set up this defense was sustained and it was stricken out. Shelvy was injured, as alleged, while in the service of the St. Louis Southwestern Railway Company of Texas, by getting caught in a turntable of said company while cleaning the tank of an engine, and was disabled for twenty-eight weeks and five days, for which time the company was liable to pay him indemnity at the rate of $10 a week, amounting to $287.14. Judgment was rendered in favor of all the plaintiffs as prayed for. Three questions arise upon the record:
1. Does article 3071 of the Revised Statutes, authorizing the recovery of 12 per cent of the loss and an attorney fee as a penalty for failure of the insurance company to pay within the time specified in the policy, apply to accident insurance? Statutes imposing penalties receive a strict construction against the penalty. A very clear distinction is made between life and health and accident companies in the provisions of the Revised Statutes relating to insurance. Article 3071 imposing the penalty is found in chapter 3, title 58, entitled General Provisions, but dealing with foreign insurance companies. Chapter 4 is concerning "home life and accident insurance companies," but contains no provision for a penalty in case of failure to make prompt payment. In the case of Aetna Life Insurance Co. v. Hicks, 56 S.W. Rep., 87, in which this court affirmed a judgment upon an accident policy of insurance for a penalty as provided by art. 3071, Rev. Stats., the question of the applicability of the statute was not raised and its constitutionality only was passed on. The question does not appear ever to have been decided by the Supreme or appellate courts of this State; but the Federal Circuit Court of Appeals for the Fifth Circuit had decided the precise question and held that the statute has no application to accident insurance companies. Fidelity and Casualty Co. of New York v. Dorough, 107 Fed. Rep., 389. The opinion in the case quotes from the statutes and gives reasons for the decision which we think are conclusive of the question. We are of the opinion, therefore, *292 that the court below erred in adjudging the penalty provided in Rev. Stats., art. 3071, against the defendant.
2. Did the court err in sustaining the plaintiff's demurrer to the answer setting up defendant's right of subrogation to the claim of Shelvy against the railway company and its discharge by reason of the fact that it had been deprived of this right by Shelvy's act in settling with and releasing the railway company from further liability to him? The right of subrogation of the insurer to the claim of the insured for loss or damage to property covered by a policy of fire insurance caused by the negligence of the carrier is well established. 2 May on Ins., sec. 454; Sheldon on Subrog., sec. 229; Wager v. Providence Ins. Co.,
3. It remains to consider whether the court erred in admitting in evidence the policy of insurance and in rendering judgment thereon over the objection to it on the ground of variance. The petition described a policy No. 188,695 issued to William Shelvy. The policy introduced in evidence was No. 138,695, issued to William Selvey. The petition declared on an assignment of accident policy No. 188,695 issued to William Shelvy; and the assignment introduced in evidence was of accident policy No. 138,695 by William Shelvy to J.B. Parker. Plaintiff testified that his name was William Shelvy, and that the policy introduced in evidence was the one delivered to him by defendant's agent, and on which he had paid premiums and had transferred to Parker Co. The judgment correctly describes the policy introduced in evidence. The similarity of the names and numbers, together with the evidence as to the identity of the transaction, leaves no doubt that the policy sued on was the identical one issued to the plaintiff Shelvy *293
and the defendant could not have been misled by the variance, and if it could not have been misled and the judgment will protect it from another suit the variance is not material. Bank v. Stephenson,
The judgment of the court below is affirmed except as to penalty of 12 per cent on the amount of the indemnity and the attorney fee, as to which it is reversed, and judgment will be finally rendered here in favor of the plaintiffs for the amount of the indemnity only.
Affirmed in part and reversed in part.
Delivered November 26, 1902.
Addendum
The Court of Civil Appeals for the First Supreme Judicial District have certified for our determination the following questions:
"This action was brought by J.B. Parker Co. against the Aetna Life Insurance Company of Hartford, Conn., to recover of the defendant a stipulated indemnity for injuries received by the insured during the life of a certain policy of accident insurance issued by the company to William Shelvy and which had been assigned by the said Shelvy to the plaintiffs; and as a penalty the further sums of 12 per cent of the amount of the indemnity due under said policy and a reasonable attorney fee, which was alleged to be $50; the total amount for which judgment was prayed aggregating $371 and costs. William Shelvy intervened in the suit as plaintiff and alleged that the amount due under the policy had been assigned to the plaintiffs J.B. Parker Co. to secure an indebtedness to them of $225; he adopted the pleadings of plaintiffs and joined in the prayer for judgment against the defendant, and asked that the balance after deducting the amount due by him to the plaintiffs be directed to be paid to him. The defendant pleaded as a defense to a recovery upon the policy the right of subrogation to the claim of Shelvy against the railway company for damages on account of the injuries for which indemnity was claimed, and its deprivation of the right by the settlement of Shelvy with the railway company and the release of it from all liability for said injury. A demurrer by plaintiffs to so much of the answer as set up this defense was sustained and it was stricken out. Shelvy was injured, as alleged, while in the service of the St. Louis Southwestern Railway Company of Texas, by getting caught in a turntable of said company while cleaning the tank of an engine and was disabled for twenty-eight weeks and five days, for which time the company was liable to pay him indemnity at the rate of $10 a week, amounting to $287.14. Judgment was rendered in favor of all the plaintiffs as prayed for.
"1. Does article 3071 of the Revised Statutes, authorizing the recovery of 12 per cent of the loss and an attorney fee as a penalty for failure of the insurance company to pay within the time specified in the policy apply to accident insurance?
"2. Did the court err in sustaining the plaintiffs' demurrer to the *294 answer setting up defendant's right of subrogation to the claim of Shelvy against the railway company and its discharge by reason of the fact that it had been deprived of this right by Shelvy's act in settling with and releasing the railway company from further liability to him?"
The court have accompanied the certificate with a copy of an opinion in the case delivered by the chief justice, from which it is to be inferred, that after certifying the questions they had affirmed the judgment of the trial court in part and reversed it in part, and a motion for rehearing had been filed.
We are of the opinion that both questions should be answered in the negative. As to the first, the opinion of the Court of Civil Appeals satisfactorily states the grounds upon which our ruling is based.
We also adopt the opinion of that court upon the second question. But in addition to what is there said, we think it is to be observed that so far as the right of subrogation is concerned, accident insurance is more analogous to life insurance than it is to either marine or fire insurance; and it has been held that it does not apply in case of life insurance. Insurance Co. v. Brame,
We have not succeeded in finding any case directly in point.
Filed March 9, 1903. *295
