Hazlitt v. Provident Life & Accident Ins. Co. ( 1948 )

NORVELL, Justice.

The case is before us as the result of the sustaining of a special exception and the refusal to amend, which resulted in the dismissal of the cause.

The appellant, as plaintiff below, sought to recover upon an accident policy issued to his wife as insured, by the appellee.

The policy provided that:

“If the insured is disabled by such in-, jury for more than thirty days,'he or his representative shall, ás a condition precedent to any liability of the Company hereunder, furnish the Company at its principal offices in Chattanooga, Tennessee, every thirty days thereafter (or as near thereto as may be reasonably possible), with a report in writing from his attending physician or surgeon, fully stating the condition of the Insured and the probable duration of his disability. Compliance on the part of the Insured or Beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect shall forfeit to the Company all right to an indemnity.”

The petition contained the following allegations :

“Plaintiff represents that she gave oral notice of her injury to Coleman and Company, the duly authorized agent of the defendant, at the office of said agent in the Alamo National Bank Building, in San Antonio, Texas; that said agent then and there advised the plaintiff that she had given notice of said accident too late, that the defendant denied liability and would not entertain the claim; plaintiff further represents that defendant by its said agent then and there refused to give the plaintiff any forms on which to make claim, proof of loss, or medical reports, but stated to the plaintiff that her claim would not be paid. Plaintiff says that she was unable to give notice within 20 days after the occurrence of said accident and injury, nor within 90 days, as is provided in said policy, but that she did give notice of her injury as soon as was reasonably possible, as is also provided in said policy; that notice of her injury and claim was not sooner given because of the serious illness, incapacity, and confinement of both the plaintiff (J. B. Hazlitt) and the claimant herein (Mathilda L. Hazlitt). Plaintiff represents further that the defendant refused to accept plaintiff’s notice of injury, refused to give the plaintiff blanks on which to formally make formal reports as to proof of loss, medical attendance, and notice of injury, and plaintiff here represents that the defendant’s refusal in such respect thereby waived compliance with such provisions of said policy relative to the making of reports, proofs of loss and medical reports usually required in such instances, which the plaintiff was then ready, able and willing to make.”

Appellee lodged numerous exceptions against the petition, including one which raised the point that said pleading “does not apprise this Defendant as to whether or not such physician was a licensed physician and whether or not such physician reported in writing to the Defendant, as provided in said policy, fully stating the condition of the insured every thirty days after the occurrence of the injury and stating the probable duration of the disability, all of which is a condition precedent to any liability on the part of the Defendant.”

The order of dismissal rendered by the trial court is expressly based upon the sustaining of the exception and appellant's consequent refusal to amend.

As we view it, the question presented is whether or not the denial of liability by the company’s agent amounted to a waiver of compliance with the requirements set forth in the provisions above quoted.

Appellee contends that a clause of an insurance policy is legal and enforcible which provides that the furnishing of periodical medical reports shall be conditions precedent to recovery. Appellee relies upon such authorities as American National Insurance Co. v. Burns, Tex.Civ.App., 273 S.W. 339; Tex.Com.App., 280 S.W. 762; Browne v. Universal Life Ins. Co., Tex.Civ.App., 62 S.W.2d 374; Washington Nat. Ins. Co. v. Booker, Tex.Civ. App., 123 S.W.2d 975, and Tex.Jur. 1105, § 288.

However, as we view it, this appeal does not turn upon the legality of the contractual provision, but rather upon the question of waiver. The medical reports provided for by the policy are in the nature of supplemental proofs of loss, and appellant here contends that by denying liability under the policy, appellee waived compliance with the provision requiring these periodic reports.

As against a special exception, • we must take the allegations of the petition- as true. An unequivocal denial of liability by an authorized agent was alleged.

In Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 213, the Court said:

“The rule is unquestioned in this state that where the insurance company denies liability under the terms of the policy, that a compliance with the policy to furnish proofs of loss is waived and a recovery may be had thereon without furnishing such proofs. Sun Mutual Ins. Co. v. Mattingly, 77 Tex. 162, 13 S.W. 1016; East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287.” See also, Commonwealth Bonding and Casualty Co. v. Knight, Tex.Civ.App., 185 S.W. 1038; International Travelers Ass’n v. Marshall, Tex.Civ.App., 94 S.W.2d 558.

We conclude that the court erred in sustaining the special exception herein set forth. This is the only point -before us upon this appeal. Defects of pleading, if any, present in the petition are not available to support the judgment With the abolition of the general demurrer, a judgment of dismissal upon refusal to amend must be tested by the particular special exception involved. Wingo v. Seale, Tex.Civ.App., 212 S.W .2d 968, this day decided.

The judgment of the trial court is reversed and the cause remanded.