3. Insurance 539(1)—Clause, requiring writ- | ration of his disability.' That by the terms of ten report of physician every 30 days, not invalid under statute. Clause in accident policy, requiring written report of insured's physician every 30 days as condition precedent to recovery, held not prohibited by Vernon's Sayles' Ann. Civ. St. 1914, art. 5714, prohibiting stipulations requiring notice to be given of claim for damages in a less period than 90 days. said provisions, which defendant alleges to be reasonable, and a compliance therewith necessary to fix liability against this defendant, the plaintiff contracted, bound, and obligated himself to comply with the terms of said provisions and to give notices to this defendant, as is required therein, as a condition precedent to fixing liability against this defendant, and with the terms of which provisions this defendant says plaintiff has failed to comply, except to furnish one report to this defendant of such accident, as is required by said provisions, which was done on the 15th day of February, A. D. 1923, In action on accident policy, refusal to sub- and thereafter neither the insured nor his repmit special issue as to whether disability re-resentative complied with the terms of said sulted from a former injury, or from any other provisions, but have wholly breached the same, cause than the injury complained of, held not and because of which plaintiff cannot error, where issue whether or not last injury cover, except for the period of 45 days, aggrereceived was sole cause of disability was sub-gating the sum of $150, and for the return of mitted. the unearned premiums paid on said policy amounting to $44.18, all aggregating the sum 4. Trial 351 (5)-Refusal of special issue, necessarily included in another issue, not error. re Appeal from District Court, Harris Coun- of $194.18, which said sum, long before the ty; Chas. E. Ashe, Judge. Suit by J. J. Burns against the American National Insurance Company. Judgment for plaintiff, and defendant appeals. Reformed and affirmed. Woods, King & John, of Houston, for appellant. 'W. P. Hamblen, R. L. Fowler, and R. C. Conn, Jr., all of Houston, for appellee. PLEASANTS, C. J. This is a suit by appellee to recover upon an accident insurance policy issued to him by appellant. Plaintiff's petition alleges, in substance, that by the terms of the policy appellant agreed and contracted to pay him the sum of $100 a month for total disability suffered by him, not exceeding 36 months, "resulting from bodily injury sustained through external, violent, and accidental means"; that on or about February 1, 1923, he sustained bodily injuries by slipping and falling while handling a gas stove, which totally and permanently disabled him from performing work of any kind. The petition asks for the recovery of $3,600, the full amount of the policy. Appellant answered by general demurrer, special exception, and general denial, and further pleaded as follows: filing of this suit, this defendant tendered to the plaintiff in full discharge of its liability. "And further specially answering, this defendant says that the policy sued upon contained specific provisions annexed and quoted; that thereafter, on the 15th day of February, A. D. 1923, plaintiff furnished to defendant report of his injury and of its probable duration, as certified to by his attending physician, in which it was certified that this plaintiff had badly sprained muscles, but expected to perform some of his duties in about 60 days; that therethis defendant mailed to plaintiff proper blanks after, about the 23d of February, A. D. 1923, for final proof as to this accident, which plaintiff failed and refused to fill out and furnish to the defendant, as is required by the terms of this policy; and that said final proof was not furnished, and neither was report of said injury furnished, as required by said policy, every 30 days, and no further report was given to this defendant until about the 22d day of September, A. D. 1923, when defendant received from plaintiff's attorneys the filled-in blank theretofore furnished by defendant on the 23d day of February, A. D. 1923, and which defendant says was not in compliance with said policy provisions; and that by the failure to so furnish the reports said policy became breached on the part of the plaintiff, and this defendant's liability fixed at the sum of $100 per month for 12 months, amounting to $150, and for the return of the unearned premiums, to wit, $44.18, aggregating the sum of $194.18. which this defendant, long before the filing of this suit, tendered to the plaintiff, and which said sum it here now tenders into the registry of the court as a full, complete, and final discharge in payment of its liability, under the terms of its said policy." "Subject to the action of the court upon the foregoing general and special exceptions, without waiving the same and still insisting upon the same, this defendant, specially answering herein, says: That plaintiff is not entitled to recover herein as sued for, except as hereinafter shown, for that the contract policy declared upon in plaintiff's petition contained, among other provisions, the following express provisions: (1) If the insured is disabled by injury or illness for more than 30 days, he or his representative shall, as a condition precedent to recovery hereunder, furnish the company, every 30 days, with a report in writing from his at- "in this, that it, in response to a letter from tending physician or surgeon, fully stating the plaintiff's attorneys, stated that it was in orcondition of the insured and the probable du-der for plaintiff to send the proof sent plaintiff This pleading was sworn to by appellant's attorney. By trial amendment, appellee pleaded a waiver by appellant of the provisions of the policy pleaded by appellant (273 S.W.) The trial in the court below with a jury resulted in a verdict and judgment in favor of the appellee for the sum of $1,370, with interest and costs of suit. on February 23, 1923, which plaintiff did on first. I would consider it in this manner-he September 20, 1923, send to defendant, and was not fully recovered before he got well. said proof or notice was retained and ac- That would be the way I would interpret it. cepted by defendant, and no objection made I would not attribute the whole disability to It is imeither one of the accidents alone. thereto." possible to say the duration of his disabilityit is an indefinite time, absolutely. In my opinion as a physician, and from my examination of Mr. Burns, I would say that he is disabled from doing any character of manual labor. * If a man in Mr. Burns' condition had been able to go back to work after that first injury, and worked for two weeks handling heavy stoves, and then suffered an injury to his hip, I would say that the trouble immediately after the second injury was caused by the second injury." [1] The evidence bearing upon the questions presented by this appeal sustains the following fact conclusions: Plaintiff was injured as alleged in his petition on February 1, 1923. The circumstances, character, and extent of the injury are thus detailed by plaintiff in his testimony: "I was carrying a gas stove up the steps, and we had it on an incline, and I was in the rear, with the end against my shoulder, and when near the top I wanted to raise my end up with the man in front, and just as I did something gave way in my hip and threw me up against the stove. I was not able to get up, and I laid there, and they picked me up and The put me in the car and carried me home. helper carried me home, and I called a physician, Dr. J. W. Thorn. That was February 1, 1923. I am still having trouble with that hip that gave way. This hip pains in here. * Dr. Fox, who made an X-ray examination of plaintiff's leg after his second injury, testified, in substance, that he discovered no trouble in plaintiff's knee, but found an inflammatory condition in and around the hip joint. He testified: "I made a picture of the knee at the time I made the picture of the hip, but I don't think he mentioned to me at that time that a 200-pound stove had fallen on the knee; I think the first time I heard about that was If on the 22d of DecemIt is aw-right here. was pulling ber, before this happened, he down a big stove that weighed 200 pounds, on his left side, and and it fell down caught his knee, and injured him, and laid him up for a month, I could not say what effect that might have on the periosteum of the hip. If I had been treating him I would know. Leaving out his history of the case, I would say it might have injured it at that time, and the inflammation would result just the same as it has. If he had been laid up with that knee and then went back to work and worked two weeks, lifting those stoves, if that hip injury had been injured at the time the knee was injured, it would have hurt him. If there was inflammation there it would have caused him pain." ful painful; can't stoop, and can't walk any distance. Always in pain; when I walk any great distance I can feel the pain. It seems like it goes into a pocket, and I can't bend, stoop, or do anything of any kind. I never had any trouble with the hip before this injury, and never had any other trouble, or any sickness that I know of. I was sick one time in the year 1922-sick three days with the dengue fever. I have always been a man who worked every day, and my work has always been laboring work. have never had any training for clerical or office work. I have never been able to do any character of work since I have been injured. I can come down town and walk around and go right back home, but I suffer pain when I do, and I don't do it unless I just have to." I On the 22d day of December, 1923, plaintiff, in attempting to remove a stove from a rack in the store in which he was employed, fell and sprained or twisted his left knee. This injury disabled him for 27 days, for which time appellant paid him the indemnity or compensation claimed under his policy. He had been back at his work after his first injury about 14 days when he received the injury for which he seeks compensation in This this suit. Plaintiff was treated for both of these injuries by Dr. J. W. Thorn. physician first testified, in substance, that when he first saw plaintiff after his second injury he thought the cause of his trouble was his going to work before he recovered from his first injury. He says: "He was reported as convalescent-supposed to be--but he was walking with a limp the last time I saw him before he went to work, he was lame. If he worked for two weeks and then suffered another injury, I would say the second accident was simply contributory to the We think the evidence is sufficient to sustain the finding of the jury that plaintiff's disability resulted solely from the injury received by him on February 1, 1923, and that such finding is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. It follows from this conclusion that appellant's assignment and proposition presenting this question cannot be sustained. [2, 3] Under appropriate assignments and propositions, appellant further complains of the judgment on the ground that, upon the undisputed evidence, plaintiff was not entitled, under the express provisions of his contract of insurance, to recover more than the compensation due him for the first 45 days of his disability, and the amount of the unearned premium paid by him for the policy, which sums amounting to $194.18 were tendered plaintiff by appellant before this suit was filed, and were again tendered in court on the trial of the case. The contract of insurance contains the fol- | (February 15, 1923), and we therefore inclose lowing provision: herewith draft in amount of $194.18, covering 45 days total indemnity, and in addition therefull settlement of this claim." to unearned premiums amounting to $44.18, in "If the insured is disabled by injury or illness for more than 30 days, he or his representative shall, as a condition precedent to recovery hereunder, furnish the company, every 30 days, 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." The evidence shows that, in compliance with the terms of his policy, plaintiff on February 15, 1923, informed appellant of his injury. This notice of claim was accompanied by a preliminary report from Dr. Thorn, plaintiff's physician, stating that he had examined plaintiff and found him suffering from an injury to his left knee and the flexor muscles of his left leg, which were badly sprained, that this injury totally disabled plaintiff from performing the duties of his occupation, and that, in the physician's opinion, the injury would last about 60 days. In response to this notice of claim for compensation, appellant wrote plaintiff on February 23, 1923, inclosing in his letter a blank form for final proof of loss. The insurance policy required appellant to furnish a claimant with form for proof of loss within 15 days after receipt of notice of claim, and provides further: "If such forms are not so furnished within 15 days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made." No further report was made by plaintiff as to his condition until the 22d day of September, 1923, when he sent appellant the filled-in blank for proof of loss which had been sent him on February 23d. In this proof of loss plaintiff claims compensation for total disability extending from the time of his injury to September 22, 1923, and states that such disability will continue indefinitely. On receipt of this claim, appellant wrote plaintiff's attorney as follows: There is no contradiction in the evidence as to the facts bearing upon this question, and, under the plain and unambiguous terms of his contract, plaintiff was not entitled to receive any compensation for disability extending more than 30 days after the notice of claim and report of his condition sent appellant on February 15th. There is, we think, nothing unreasonable in this provision of the policy requiring an insured, who claims compensation for disability caused by injury or sickness which lasts longer than 30 days, to keep the company informed of his condition by furnishing it with his physician's report every 30 days. Such requirement is manifestly made for the protection of the company against fraud and imposition, and when we consider how numerous and widely distributed the beneficiaries in such policies may be, efficient protection of the company could not be otherwise secured except at such additional costs to the insurance companies as would necessarily increase the costs of such insurance. Such a provision in a policy of this kind cannot be held to be against public policy. Being neither unreasonable nor against public policy, the provision must be upheld, unless prohibited by our statute. Article 5714, Vernon's Sayles' Statutes. This statute provides that: "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable; and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void." Appellee very earnestly insists that the provision of the contract requiring reports every 30 days of plaintiff's condition is void under the statute above quoted. In support of their contention, appellee's counsel cite the case of Ins. Co. v. Herndon (Tex. Civ. App.) 184 S. W. 283. This case fully sus the case of Southern Casualty Co. v. Landry (Tex. Civ. App.) 266 S. W. 804, reversed its former holding and upheld the validity of contracts of this kind. In the Landry Case, supra, the court says: "Dear Sir: This will acknowledge your let-tains appellee, but the court which rendered ter inclosing report requested in our letter of that decision has, in a subsequent opinion in the 7th inst., in connection with the matter written above. First report received in evidence of this claim is dated February 15, 1923. and shows that the insured was injured on January 31, 1923, having regular attendance from physician until February 15th. From that date and until September 22d, the company was not furnished either by the insured or his representative a written statement from the attending physician, fully stating the condition of the insured. Such report should have been furnished the company at the expiration of each 30 days' disability under the terms and conditions of the policy contract. It is evident the company had no liability on the ex "In the case of Insurance Co. v. Scott (Tex. Civ. App.) 218 S. W. 53. grave doubts were expressed as to whether article 5714 is applicable to a stipulation in an insurance contract for 'immediate' notice of the happening of an occurrence insured against, but that said law applied to the notice to be given of any claim for damages, and that it made no direct reference to the question of requiring notice of the (273 S.W.) statute invoked is restrictive and in derogation of the common-law right to freely contract, and therefore, under well-settled rules, to be construed strictly.' Insurance Co. v. Scott, supra. This holding, we take it, was approved by the Supreme Court when it denied an application for writ of error in said case. Furthermore, in the case of Texas Glass & Paint Co. v. Fidelity & Deposit Co. 244 S. W. 113, this exact point was again under consideration by the Commission of Appeals, and the holding in Insurance Co. v. Scott, supra, was followed." While the court in the Scott Case (Tex. Civ. App.) 218 S. W. 53, expressed the opinion that the statute does not apply to con tracts of this kind, the decision of the case was not based on that opinion, and the refusal of a writ of error by the Supreme Court cannot be regarded as an express approval by that court of the opinion in question. However, in the case of Texas Glass & Paint Co. v. Fidelity & Deposit Co., 244 S. W. 113, the Commission of Appeals seems to approve the opinion in the Scott Case that the statute is not applicable to contracts of this kind, and assumes that the refusal of a writ of error in that case carries with it the approv al of the opinion by the Supreme Court. We agree with the opinion expressed in the Scott Case that the statute does not apply here. whether or not the injury received by appelThe jury were asked by the court to say lee on February 1st was the sole cause of his disability. The issue as submitted necessarily included the issue of whether there was other cause or causes for the disability, and there was nothing in the pleading or proof which required the court to submit the issue in the form requested by appellant. For the reasons stated, the judgment of the The requirement that, in case of continued disability, for which appellant had contract-trial court should be reformed, as above in ed to pay appellee a stipulated monthly amount, appellant would not be liable for such payments, unless appellee kept it informed monthly of his condition, cannot be regarded as a "stipulation requiring notice to be given of a claim for damages," as that term is used in the statute above quoted. It follows from these conclusions that appellant's contention that the judgment against it should be reduced as above indicated must be sustained. We deem it proper to say that there is nothing in this record to show any fraud or attempted fraud on the part of appellee. He has simply failed to do that which he agreed to do in order to fix appellant's liability, and the courts cannot relieve him of a contract which he deliberately and willingly made, and which, as we have before said, is not in our opinion unreasonable or against public policy. The following quotation from the opinion of the Supreme Court of the United States, in the case of Ins. Co. v. Coos County, 151 U. S. 452, 14 S. Ct. 379, 38 L. Ed. 231, is especially applicable to this case: "For a comparatively small consideration, the insurer undertakes to guarantee 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 can dicated, and, as so reformed, should be af firmed, and it has been so ordered. Reformed and affirmed. Appeal from Harris County Court; Roy F. Campbell, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Suit by G. P. Burgess against Don H. Adams, in which defendant filed cross-bill against G. P. Burgess and another. Judgment for plaintiff against defendant first named, and for defendant first named on his cross-complaint against G. P. Burgess and another, and the latter appeal. Reversed and rendered. Gill, Jones & Tyler, of Houston, and Saner, Saner, Turner & Rodgers, of Dallas, for appellants. PLEASANTS, C. J. The suit, in which the judgment from which this appeal is prosecuted was rendered, was brought in the justice court for precinct No. 1 of Harris county, by F. S. Glover against Don H. Adams, to recover the sum of $125, claimed to be due the plaintiff by the defendant for rent of a building in the city of Houston. The defendant Adams answered by general demurrer and general denial and filed a cross-bill against G. P. Burgess and C. E. Gustafson, copartners, in which it is alleged that Adams sold out the business he was conducting upon the premises in question to the defendants Burgess and Gustafson, and that they agreed to assume and pay the future rent to Glover as long as they occupied the premises. To this cross-action of the defendant Adams, the defendants Burgess and Gustafson first filed a plea of privilege, pleading their right to be sued upon this cross bill, if at all, in Dallas county, the residence of the defendant Burgess, or Kerr County, the residence of the defendant Gustafson. In answer to this plea defendant Adams ed the following controverting affidavit: ment in favor of Adams on his cross-bill against appellants for the amount of plaintiff's judgment against him. On appeal and trial de novo in the county court at law, judgment was again rendered in favor of Adams against appellants, from which judgment this appeal is prosecuted. [1] Appellants seek a reversal of this judgruling of the court upon their pleas of priviment solely upon the ground of error in the lege. The first proposition presented in their brief is as follows: "Where a nonresident defendant is not sued jointly by the plaintiff with a resident defendant residing in the county where the suit is filed, a cross-action by the resident defendant against a nonresident defendant does not come within one of the exceptions as to venue, expressed in articles 1830 and 2308 of the Revised Civil Statutes of the State of Texas, and it is error for the court to overrule a plea of privilege as against such cross-action of such resident defendant when properly presented by the nonresident defendant." The proposition correctly states the law ap plicable to the question presented by the record, and must be sustained. of action against the appellants, and the suit The plaintiff in the suit asserted no cause against them by the defendant Adams, rewith plaintiff's suit against him in so far as gardless of whether it was properly joined the question of venue is concerned, must be considered as an independent suit, and obviously, when so considered, can only be fil-maintained over defendants' objection in the county of the residence of one of them. Section 4, art. 1830, Vernon's Sayles' Statutes. "That this is a suit by the plaintiff F. S. Glover against the defendant Don H. Adams, who is a resident citizen of precinct No. 1, Harris county, Tex., in which suit this defendant has filed a cross-action against the defendants C. E. Gustafson and J. P. Burgess, and this defendant Don H. Adams prays the court that in the event plaintiff should recover anything herein against this defendant, that then in such event this defendant should have judgment over and against the defendants C. E. Gustafson and J. P. Burgess, for any amount for which judgment might be recovered against this defendant by the plaintiff; that this suit was properly brought in the justice court of precinct No. 1, in Harris county, Tex., because the defendant Don H. Adams is a resident citizen of precinct No. 1, Harris county, Tex., in accordance with articles 1830 and 2308 of the Revised Statutes of the State of Texas-all of which this defendant is ready to verify." The plea of privilege was overruled, and thereafter defendants Burgess and Gustafson filed a plea in abatement on the ground of misjoinder of parties and causes of action. The plea in abatement was also overruled. The trial in the justice court upon the merits resulted in a judgment in favor of the plain If it be conceded that under our liberal rule relating to the joinder of causes of action appellees' suit against appellants was properly joined with the suit brought against them by Glover, such joinder which, if permissible, would be so only on the ground of convenience and the prevention of a multiplicity of suits, would not defeat appellants' statutory right to be sued in the county of their residence or in that of the residence of one of them. Gladish v. Neeley (Tex. Civ. App.) 248 S. W. 751; Fire Ins. Co. v. Littlejohn (Tex. Civ. App.) 228 S. W. 595. In the Littlejohn Case, supra, one of the justices dissented from the holding of the majority that the suit should be transferred to the county of the defendant's residence, and expressed the opinion that the plea of misjoinder should have been sustained and the suit dismissed. [2] As before stated, we are not willing to hold that the two causes of action could not have been joined, and therefore the suit should not have been dismissed, but transferred to the proper county. Since the defendant Adams might have brought his suit against appellants in either the county of |
