author: HARPER, C. J. HIGGINS, J. Chief Justice HARPER McKENZIE, J.

text:
    HEFNER v. FIDELITY & CASUALTY CO. OF NEW YORK.
    (Court of Civil Appeals of Texas. El Paso.
    June 5, 1913.
    On Rehearing, Nov. 11, 1913.)
    1. Insurance (§ 524) — Construction of Policy — Accident Insurance — "Total Disability.”
    A provision in an accident insurance policy for indemnity for total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation requires only such disability as prevents the performance of any substantial part of his duties.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. § 524.

    For other definitions, see Words and Phrases, vol. 8, pp. 7010-7012.]
    2. Insurance (§ 668*) — Actions on Policies —Questions for Jury — Accident Insurance-Total Disability.
    Evidence that an attorney was prevented by an injury from doing anything that required continuous physical effort, that he was unable to do any work in the library or conduct the trial of a long drawn out case, is sufficient to take to the jury the question whether his disability was total within a clause in an accident-insurance policy providing indemnity for total disability.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.].
    3. Insurance (§ 539) — Notice of Loss — Time for Notice — Reasonable Time.
    A delay of ten months in giving an accident insurance company notice of an accident is unreasonable per se, under a clause of the policy requiring notice to be given as soon as may be reasonably possible.,
    [Ed. Nóte. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.]
    4. Insurance (§ 539) — Notice of Loss — Time for Notice — Effect of Delay.
    Compliance with the requirement of an accident insurance policy that notice be given as soon as may be reasonably possible is a condition precedent to recovery' under the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.]
    On Rehearing.
    5.Insurance (§ 665) — Actions on Policies —Sufficiency of Evidence — Accident Insurance — Immediate Disability.
    In an action by an attorney upon an accident insurance policy for the indemnity provided therein for immediate, continuous, and total disability, evidence held to show that the disability of the insured resulting from the accident, while total within the meaning of the policy, was not immediate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    6.Insurance (§ 539) — Notice of Loss — Time for Notice — Excuse for Delay.
    The fact that physicians who attended a person accidentally injured attributed his‘ condition to disease, and not to the accident, does not excuse a failure to give the company notice of the accident as soon as reasonably possible, as required by the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.]
    McKenzie, J., dissenting.
    Appeal from District Court, Reeves County ; S. J. Isaacs, Judge.
    Action by T. J. Hefner against the Fidelity & Casualty Company of New York. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. W. Parker and Hefner & Cooke, all of Pecos, for appellant. Nealon, Neill & Thom-ason, of El Paso, for appellee.

      For other eases .see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

Appellant filed this suit Mlarch 23, 1912, to recover on an accident insurance policy for total disability not exceeding 300 weeks, at $25 per week, as an attorney at law, alleging that the accident happened about August 20, 1909. ' The defendant, answering, pleaded that the policy upon which plaintiff sought to recover provided, first, that written notice should be given to the company as soon as might be possible, .together with full particulars; that this provision was a condition precedent to the right of recovery; that at least six months had elapsed after the alleged accident before notice was given. Further pleaded that the policy provided that legal proceedings could not be brought on the policy before the expiration of three mouths from the date of filing final proofs, and not at all unless begun within six months from the date specified for filing final proofs, and, further, that plaintiff filed his notice many months after the accident, and that he filed no affirmative proof of disability. Defendant further alleged that the policy insured against bodily injury sustained through accidental means, resulting independently and exclusively of all other causes in immediate, continuous, and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation, and that plaintiff’s injuries did not come within this clause of the policy, therefore he should not recover. The parties announced ready for trial before a jury, and the evidence introduced, whereupon the court instructed a verdict for the defendant, and the only assignment of error which can be considered charges that this peremptory charge is such an error as to require a reversal of the case. The question, therefore, for this court to pass on is, Did the plaintiff, by his pleading and proof, make a prime facie case against the defendant?

The portions of the policy, and all the evidence essential to this opinion we quote as follows:

“The Fidelity and Casualty Co. of New York * * * does hereby insure the person herein called assured, against: Bodily injury sustained during the term of one year from date of this policy- * * * resulting directly, independently and exclusively of all other causes, in (a) immediate, continuous and total disability, that prevents the assured from performing any and every kind of duty pertaining to his occupation; (b) immediate (as respects tlie injury or as respects preceding total disability) and continuous partial disability that prevents the assured from performing fully work essential to the duties of his occupation * * *.
“Accident Indemnities.
“Total Disability.
“Art. 1. If the assured suffers total disability, the company will pay the assured for the period of the said total disability, not exceeding two hundred ' weeks, twenty-five dollars a week.”
“Art. 3. If the assured suffers total disability for a period of two hundred weeks, and if the bodily injury causing the said total disability does not result in a loss named in the table of article 4, nor in a loss covered under article 9 or 10 but continuously after said period of two hundred weeks totally disables and prevents the assured from performing any and every kind of duty pertaining to his occupation, the company will pay the assured, so long as the assured continuously suffers said disability subsequent to two hundred weeks and is under seventy years of age, six dollars, and twenty-five cents a week.”
“Art. 9. If the assured suffers total disability and if during the period of said total disability and within ninety days from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of all other causes, in permanent paralysis whereby the assured is permanently unable to engage in any work or occupation for wages or profit; and if the assured survives the said paralysis for a period of one year and at the end of said period is declared by competent medical authority satisfactory to the company to be permanently paralyzed and by reason of the said permanent paralysis to be permanently unable to engage in any work or occupation for wages or profit; the company will pay the assured, in addition to the weekly indemnity to which he may be entitled under article 1, one thousand two hundred and fifty dollars.
“Art. 10. If the assured suffers total disability, and if during the period of said total disability and within six months from the date of the accident the bodily injury causing the said total disability results directly, independently and exclusively of. all other causes, in incurable insanity, and if within the said period of six months the assured is committed by the proper authorities on account of the said insanity to a state or licensed asylum for the insane and is there continuously confined for a period of two years, and within thirty days after the expiration of the said period of two years is declared by competent medical authority satisfactory to the company to be incurably insane and by reason of such insanity to be permanently unable to engage in any work or occupation for wages or profit; the company will pay to the person or persons duly authorized to receive the money on behalf of the assured, in addition to the weekly indemnity to which the assured may be entitled under article 1, one thousand two hundred and fifty dollars.”
“Art. 17. If the assured suffers total disability for a period exceeding three months, the weekly indemnity to which the assured may be entitled under article 1, 3, or 4, for any part of the entire period (provided such part is not less than three months) shall be payable upon the assured’s filing affirmative proof of total disability and of the duration thereof for each part of the entire period for which claim is made. Proofs covering the entire period of total disability must be filed as hereinafter set forth.
“Art. 18. Written notice of an accident on account of which a claim may be made must be given to the company at its home office in New York City, as soon as may be reasonably possible, together with full particulars thereof and the full name and address of the assured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company as soon as may be reasonably possible after the occurrence of the accident causing such bodily injury or death. Affirmative proofs in writing must be filed with the company as follows:
“Section 1. Accident Claims. — Affirmative proofs of death, dismemberment, loss of sight, total or partial disability, and the duration thereof, must be filed with the company within two months from the time of death or of dismemberment or of loss of sight or of the termination of the period of total or partial disability for which claim is made. Affirmative preliminary proofs under articles 9 and 10, must be filed with the company within two months from the date of the beginning of paralysis or insanity and affirmative final proofs under said articles must be filed with the company within two months from the date of the final examination required under said articles.
“Art. 19. Legal proceedings for recovery hereunder shall not be brought before the expiration of three months from the date of filing final proofs at the company’s home office, nor brought at all unless begun within six months from the date specified herein for final proofs. If any limitation set forth in this and the preceding article is prohibited by the statutes of the state in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statute.”
“Art. 23. The terms, bodily injury, total disability, partial disability, dismemberment, loss of sight, and death, are defined in the insuring clause, and as so defined shall be understood wherever used in this policy.”

T. J. Hefner, plaintiff, testified: “I live in Reeves county, Texas. My occupation is that of lawyer. I happened to an accident August 20, 1909, at my home in Pecos, Tex. Some carpenters were raising my liouse several inches and had dug and left a hole uncovered; that evening after dart, in going to a hydrant in the yard for water, 1 stepped, with my left foot, into this hole and went down with considerable force; when X straightened up I felt a keen pain in my left side, just above the hip bone, and for several weeks it was located in left side and hip, but ultimately worked around into my back. It grew worse until July, 1910, when I lost the use of my limbs. I could not say definitely and positively that I realized that my continued suffering and continued pain and ailment was the result of that accident until the latter part of June or first of July, 1910; that is, I did not realize the seriousness of the injury until that time, about 10 or 11 months afterwards. In answer to the question whether or not I attributed, immediately after the accident, the accident itself as the cause of my continued injury and suffering, or to other causes, will say, I always connected the hurt or injury with the accident; it was a case of T will be better tomorrow, and will be all right next week,’ and it went along that way for several weeks before I consulted a physician at all. I think it was in October or November when I went to Dr. Camp’s office and told him how I was affected, and he told me I was suffering from rheumatism and prescribed for me. I took the medicine prescribed until some time in November or December, got no relief, then consulted Dr. Vinsant, told him how I was affected and was suffering, and after examination he told me he thought my trouble was from a wrench or sprain in the lumbar region of the spine. In February, 1910, an osteopath by the name of Wright examined me, and told me that my trouble was due to a wrench or twist in the back, advised me that it was not a serious hurt, and that he thought a few treatments would relieve me. I took his treatment 18 or 20 days. When I left him he told me he thought I would get all right without any more treatment. I returned home, but got no better. Then about the 12th or 14th of April, 1910, I went to Dr. Means in Dallas; he made what I call a pretty thorough examination; he told me he was in doubt about what was the cause of the trouble. I told him to call in another physician or two, and he asked me to wait a few days and let him study my case. After three or four days he told me my trouble was due to nerve tumor or fractured or ruptured nerve. Also he told me that he did not regard the trouble as serious; but at the end of a month or six weeks I was in a worse condition — that is, so far as my injury was concerned — than when I went to Dallas. At the end of six weeks from the time I got to Dallas my left leg gave signs of giving down, and I called his attention to it, and it kept getting worse, and then he told me that he was convinced that my injuries were serious, and said ‘It may be 12 or 15 months, or possibly two years, before you recover.’ That was the last of June or first of July, 1910. Then it was that I realized for the first time the seriousness of my condition, and I gave notice to the insurance company of the injury a short time afterwards. Gave the notice in writing. I had never been advised or apprised prior to this time that the accident really was the cause of the trouble. Understand me, I personally attributed the injury to the accident all the time, but the-doctors took a different view, and so advised me, and I believed what they said. The reason I did not give notice to the company before was at first it was a case of T will be better tomorrow, and will "be all right next week,’ until the pain became se severe, until I consulted a physician, and he told me it was rheumatism, and I thought from the advice of the physician that the trouble was not serious, and did not, as I said, realize how serious it was until Dr. Means’ final diagnosis. As to what extent the accident had totally disabled me from performing any or all of my work as a lawyer, I suffered intense pain in my left side and hip from the time of the accident; could not do anything that required physical exertion, such as stooping, squatting, sitting, getting to my feet, things of that kind. I was unable to do any work in the library, such as looking up and collating authorities, and did not undertake to do any of that sort of work from the time of the injury, and never after that was able to take charge of and conduct the trial of lengthy eases in court. I was frequently present during the trial of cases and assisted so far as I could, but those were some of the things I could not do, and there were a great many things I could not do. And the things I have mentioned were necessary to be performed as a practicing lawyer, and the disabilities have continued on down to the present time, 2½ years. The only way I can now get around at all is in a roller chair, and somebody must push me, and lifted and carried up stairways. The duties of an attorney at law are the preparation of cases for trial, the trial in the courts, giving legal advice, writing contracts, deeds, etc., preparing cases for appeal, writing briefs for appellate courts, and so on. When Dr. Means told me-what he did about the latter part of June, 1910, I sent to I. Reinhardt & Son’s office-in Dallas for an information blank. When I got back to Pecos a few days afterwards I filled it out and mailed it to the company’s-agents at Dallas, together with a letter explaining the delay. I had paid the premium on the policy. I have not been paid anything for the injuries suffered. So far as I know the company made no investigation of the-accident. There was nothing to prevent them doing so.” On cross-examination: “Yes, I stated in my depositions taken in 1912 that the injury resulted in immediate-physical pain of a severe type, so severe that it was difficult for me to walk or sit down or rise to my feet, and that is substantially correct. In answer to the interrogatory, ‘State whether as a result of the «¡aid accident, you have been prevented from performing any and every kind of duty pertaining to your occupation.’ I said ‘Yes, since April, 1910, I have been. Prior to that time and dating from the time of the accident I was not prevented from performing some of the duties required of me. As to others, I was prevented and totally disabled. That I may not be misunderstood, I was able to perform in a way all the duties required of me, except the following: Was unable to do anything that required continuous physical effort or exertion; for that reason, I was unable to do any work in the library, could not look up, examine or collate authorities bearing upon legal questions, was unable single-handed to conduct the trial of important long drawn out cases, was unable to attend court outside of Reeves county, other than in Ward county. I gave notice to the company June 15, 1910. I now live at the place where the accident happened, and lived there when I gave notice. Some of the men who were doing the work on my house at the time of the accident are here in Pecos now, and my family are all still living here, also Dr. Camp and Dr. Vinsant.’ ”

The physicians testified that plaintiff was unable to use his lower limbs by reason of injuries to the spine, which could have been caused by stepping in a hole, as described by the plaintiff, and that it could not be caused except from some injury of that special kind.

The first question is, In view of the provisions of the policy, and in the light of the evidence, should it be held that appellant was in a state of immediate, continuous, and total disability that prevented him from performing any and every kind of duty pertaining to his business as a lawyer, as a matter of law? Stress is laid upon the clause of the policy which reads: “Insured against bodily injury sustained through accidental means resulting directly, independently and exclusively of all other causes in immediate, continuous and total disability, that prevents the assured from performing any and every kind of duty pertaining to his occupation.” When parties enter into contracts, it must be assumed that they intended that the happening of certain events or contingencies thereafter would create liability. Contracts for which valuable considerations are received must mean something and have effective force. The occupation of a lawyer calls for both mental and physical'exertion. If “total disability” means that he shall literally be totally unable to perform any part of his business, then the accident must cause entire suspension of his mental faculties, and also total loss of physical power to move in the minutest detail of the profession, even to the ability to pick up a book or to turn the leaves thereof if laid on a table in front of him. If this be a proper construction of the words, then in this case the appellant was only insured against death. To interpret the clause in its contractual sense, as defendant seeks to have us do, would render the contract utterly useless to an assured, and would be nothing short, practically speaking, of collecting a premium without rendering anything in return. So equity and good conscience impels the construction that the disability meant is a disability as to the performance of any substantial part of the business. The testimony tends to show that the total disability was “immediate and continuous.”

Plaintiff testified that “from the time of the accident I was not prevented from performing all of the duties required of me in my profession, but as to some of them I was totally disabled,” and named the things which he 'was totally unable to do, which is sufficient to raise the issue and to require a charge submitting it to the jury.

Appellee contends that no sufficient notice was given, and if the notice was sufficient, then it was not given within the time prescribed by the policy. The undisputed evidence is that a notice in' writing was delivered to the agents of the company in Dallas, Tex., and that it afterwards reached the New York office. Article 18 and section 1 of the policy about quoted in full provide that: “(a) Written notice of an accident on account of which a claim may be made must be given to the company at its home office in New York City, as soon as may be reasonably possible. (b) Affirmative proof of death * * * total or partial disability * * * must be filed with the company within two months from the time of death * * * or of the termination of the period of total or partial disability, for which claim is made. Affirmative preliminary proofs under articles 9 and 10 must be filed with the company within two months from the date of the beginning of the paralysis. * * * ” “Notice of the accident must be given as soon as may be reasonably possible” is the only notice with which we are concerned, and we find the weight of authority to be to the effect that 10 months, as in this case, under all the circumstances, was unreasonable per se. Nax v. Travelers’ Ins. Co. (C. C.) 130 Fed. 985; Continental Casualty Co. v. Waide, 101 Tex. 102, 105 S. W. 35; Suggs v. Travelers’ Ins. Co., 71 Tex. 579, 9 S. W. 676, 1 L. R. A. 847; Dunshee v. Travelers’ Ins. Co., 25 Pa. Super. Ct. 559; Coldham v. Pacific Mutual Life, 2 Ohio S. & C. P. Dec. 314; McFarland v. U. S. Mutual Acc. Ass’n, 124 Mo. 204, 27 S. W. 436; Foster v. Fidelity & Casualty Co., 99 Wis. 447, 75 N. W. 69, 40 L. R. A. 833; Young v. Railway Mail Ass’n, 126 Mo. App. 325, 103 S. W. 557. And that notice in compliance with the policy was a condition precedent to recovery.

We, therefore, find that the trial court did not err in instructing a verdict. ⅛ judgment of lower court is therefore affirmed.

On Rehearing.

HIGGINS, J. Chief Justice HARPER

and myself concur in the view that the motion for rehearing herein should be overruled. He is of the opinion that notice of the accident was not given within the time prescribed by the contract of insurance, this being the ground of affirmance assigned in the original opinion. For reasons hereinafter stated, I, too, am inclined to the view that the notice came too late, and am of the further opinion that the case should be affirmed for a reason not set forth in the original opinion, and upon which I shall briefly state my views.

The suit is based upon that provision of the contract insuring against bodily injury sustained during the life of the policy and resulting, directly, independently, and exclusively of all other causes, in “immediate, continuous, and total disability that prevents the assured from performing any and every kind of duty pertaining to his occupation.” I concur in the view expressed in the original opinion that the evidence discloses that as a result of an accident occurring on August 20, 1909, the assured eventually became totally disabled from performing the duties pertaining to his occupation within the meaning of the contract. It is true that, by applying the strict letter of the contract, the evidence does not disclose such a total disability as would prevent him from performing any and all duties incident, to the practice of his profession; but I think the clause should be reasonably construed, and, so construing the same, he has become totally disabled. A literal interpretation of the contract, with reference to this phase of the case, would require a complete loss of all physical power and mental capacity; in fact, it would scarcely happen that one could live and bring himself within the literal language of the contract.

It will be noted, however, that liability attaches not only in case of continuous and total disability, but the same must be an immediate result of the injury, as well. Appellant was a practicing attorney, and the undisputed evidence discloses that after the accident on Augusta 20, 1909, he continued for several months to perform many of the duties incident and pertaining to the practice of law. He testified that for some months he was able to perform, in a way, all of the duties incident to his profession, except that he was unable to do anything requiring continuous physical exertion, such as working in the library, examining and collating authorities, and was unable alone to conduct the trial of important and long drawn out eases. He states that he attended his office with more or less regularity until March or April, 1910, and did regularly all of the things to be done with the exception noted; that, while he labored under difficulty, he nevertheless went ahead and did it. He states that he did considerable work in the office, and assisted in the trial of several cases after the accident, and made one or two trips in a buggy to Ward county with his law partner. 1-Ie was also present at the trial of a ease in El Paso county, which continued for nine days. He took no active part in the conduct of this trial, but made an argument to the jury. He was also present and took part in the trial of a case referred to in the evidence as the “Beason-McKenzie case.” It seems that appellant was also the county judge of Reeves county, and presided over the October term, 1909, and the January term, 1910. The facts detailed above are undisputed, and are testified to by appellant himself, and to my mind it clearly shows that his bodily injury sustained on August 20, 1909, can in no wise be considered such an “immediate” total disability as is covered by the contract. Williams v. Preferred, etc., 91 Ga. 698, 17 S. E. 982; Laventhal v. Fidelity, etc., 9 Cal. App. 275, 98 Pac. 1075; Continental Casualty Co. v. Ogburn (Ala.) 57 South. 852; Pepper v. Order, etc., 113 Ky. 918, 69 S. W. 956; Merrill v. Ins. Co., 91 Wis. 329, 64 N. W. 1039.

Adverting now to the matter of the notice of the accident given to the company, it will be seen from what has been said above that recovery can be predicated only upon the theory that the injury resulted in an immediate disability. Appellant stated in his testimony that he had at all times attributed his condition to the fall which he received on August 20, 1909, and justifies his failure to give notice to the company because of the advice of his physicians that his injuries were slight and attributable to other conditions. But, if there was an immediate and total disability from the date of the accident, I do not think that the delay until June 15, 1910, in, giving the written notice provided for, can be excused because of the advice of physicians. The right to demand this notice is an important and valuable one to the company, and if there was an immediate and total disability, the cause of which appellant had reasonable ground to believe, and did believe, was due to his injury, it was his duty to give tlie notice within a reasonable time. The delay noted was such an unreasonable one as woiild bar his right.

There is not the slightest intimation of any fraud or deception whatever in the claim asserted in this cause, nor any contention that the deplorable physical condition of appellant is not due to the bodily injury which he sustained on August 20, 1909, and it is a ease where the facts loudly cry for relief against the strict and harsh provisions of the contract; but considerations of this kind can-have no determining influence in the decision of the case, and for the reasons indicated I concur in tile view that the motion for rehearing should he overruled.

Chief Justice HARPER concurs in the views here expressed.

McKENZIE, J.

(dissenting). I am of the opinion that the evidence raises an issue of fact which should have been submitted to the jury, as to whether the injury sustained from the accident resulted in “immediate, continuous, and total disability.” The policy, when construed as a whole, clearly insures against injury from an accident of the kind -suffered by the appellant. The original opinion on file in this cause, to my mind, reaches the proper result or conclusion as to appellant’s right to recover for total disability, and to have the issue properly submitted to the jury.

The majority of the court have decided that the evidence affirmatively shows 'that notice of the accident was not given in proper time. The term “reasonably possible,” as used in the policy, and as same is applied to notice of the accident, means only that notice of the accident must be given within a reasonable time after its happening. To determine what is a reasonable time, we are required to look to the particular case, viewing it in the light of all the attending circumstances. If, however, the term “reasonably possible,” as used in the policy, should mean a period of time of shorter duration than prescribed by R. S. 1895, art. 8379, as amended by Acts 1907, p. 241, then the stipulation as to notice is void. Maryland Casualty Co. v. Hudgins, 72 S. W. 1047; Ætna Life Insurance Co. v. Griffin, 123 S. W. 432; Royal Casualty Co. v. Nelson et al., 153 S. W. 674.

By the statute, any stipulation requiring notice, which, when viewed in the light of all the circumstances of the case, is not reasonable, is void. The policy provides, however, as a saving clause, that any limitation stipulated for, which contravenes a statute of the state where the policy is issued, shall be ignored, and the shortest period of limitation allowed by statute shall become a part of the policy. That part of article 3379, supra, which is applicable to this cause, reads as follows: “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 said notice shall be given at a less period than ninety days shall be void.” It is then expressly provided that the time for giving notice of the accident must be reasonable; also, any stipulation requiring notice to be given within a less period of time than 90 days shall be void. The 90-day provision is intended to prevent any stipulation in the policy of a shorter period, whether reasonable or unreasonable. The intent and purpose of the statute is clearly to the effect that the stipulation as to time of giving notice must be reasonable, and necessarily, as to what is a reasonable time, must be considered in the light of the facts of each case. The stipulation must be reasonable, even though the time of giving notice may exceed the period of 90 days. Notice of an accident, however, is not required until assured, by the exercise of ordinary care, has first ascertained that the injury complained of is the result of such accident. Phillips v. U. S. Benevolent Society, 120 Mich. 142, 79 N. W. 1; People’s Mutual Accident Association v. Smith, 126 Pa. 317, 17 Atl. 605, 12 Am. St. Rep. 871.

In the light of the evidence, I contend an issue of fact was raised, which should have been submitted to the jury upon the question of the time of the giving of the notice of the accident. Appellant’s evidence, in part, is as follows: “I again saw Dr. Vinsant, and explained to him that my trouble was getting worse and worse all the time, rather than better. I told him I was growing no better, but that I was growing speedily worse, and in that conversation I told him what Dr. Camp had previously told me, that it was rheumatism, and that I had about made up my mind to go to either Mineral Wells or to the Gill Wells at Dallas for the purpose of taking a course of baths, and asked him what he thought about it, and he told me he thought it would be a good idea, that perhaps the baths would relieve the trouble to some extent. He rather at that time insisted on my burning my back. I told him I had made up my mind that I was going to the Wells for the purpose of taking the baths, and would leave within a day or two, and I did not care to take the burning then. He then advised me to go pn and take the baths, and if the baths afforded me no relief that after I returned to Pecos he would try the burning process, by burning my back, to see what relief I could get from that. So some time in April, I do not remember just when —my recollection is about the 12th or 14th, somewhere — I did go to Dallas, expecting to take the baths at the Gill Wells, which I did while I was there; but on reaching Dallas I was suffering so intensely I at once called in a physician — called in Dr. E. A. Means of Dallas. He made what I thought a pretty thorough examination. I do not remember that he told me, after he made his examination, just what the trouble was, or, rather, he said that he was in doubt as to what the trouble was. I then told Dr. Means that it was my intention to call in another physician or two, that there was something radically wrong with me, and I wanted to know what it was, and, if there was any relief, I wanted it. He then requested me not to call in another physician under three or four days— said, ‘You give me three or four days in which to diágnose your case, and then you may call in as many physicians as you please.’ I granted his request. So at the end of the third or fourth day he told me that he thought my trouble was due to nerve tumor, or rather to a fractured or ruptured nerve. He told me he did not regard the trouble as being at all serious, and that in his opinion in the course of a month or six weeks I would return home a sound man, and he began treating me, but at the end of the month or six weeks I was in worse condition in some respects; that is, so far as my injury was concerned, I was in worse condition than when I went to Dallas. At the end of six weeks from the time I went to Dallas, my left limb showed signs of giving down, and I called his attention to it, and it kept getting worse, and finally he told me: T am now convinced that your injury is of a more serious character than I first thought; your limb shows signs of giving down, and in that event it may be twelve or eighteen months or possibly two years, before you recover the use of your leg.’ This date was about the last of June or the first of July, 1910. I cannot remember positively as to the date; but it was about the last of June or the first of July. Then it was that I realized for the first time the seriousness of my condition, and I gave notice of the injury a short time after — I think only a few days after. When Dr. Camp advised me that I had rheumatism, I supposed it was rheumatism, and took treatment for rheumatism. Yes; the notice which I gave to the company was in writing. The examination made by Dr. Means at Dallas, about which I have testified, was first made in April; but it was the latter part of June or first of July, 1910, when he advised me. I had never been advised prior to this time, and had never been apprised, prior to this time, that the accident really was the cause of the trouble. Understand me, I personally attributed the injury to the accident at the time, myself; but the doctors seemed to take different views, and so advised me, and when they advised me differently I certainly believed what they said. I have virtually stated heretofore, gentlemen, the reason why I never gave notice to the company any sooner than I did. The reason was, at first it was a case of T will be better to-morrow and will be all right next week,’ and it went along that way for several weeks, until the pain became so severe that I thought it might be best to consult a physician with reference to my trouble. Dr. Camp, of this place, was the first physician that I consulted, and he told me I had rheumatism. When he told me that, I thought possibly I might be mistaken about my trouble being the result of the accident. Later on I consulted Dr. Vin-sant, as already stated, and he stated he thought my trouble was due to a slight wrench or twist of the lumbar spine or muscles of the back. He did not regard it as being serious, and thought I would be all right in a little while, by using the hot applications and wearing the abdominal support. Later on I consulted another physician, an osteopath in El Paso. He said that the injury was slight, and told me that treatments that he had given me would cure the trouble without further treatment, he thought, and I supposed, when I left El Paso, that I was practically well, from what he told me. I was still suffering pain, of course. Later on, I consulted Dr. Vinsant again, and he was still of the opinion that the trouble was due to a slight wrench or sprain, and advised me that wearing an abdominal support constantly would in all probability relieve the trouble. So I naturally supposed the trouble was not serious, and did not know how serious it was until a month or six weeks after I had been taking the treatment at Dallas, under Dr. E. A. Means. When my limb began to show signs of giving down, he advised me that the injury was of a more serious character than he first, thought; that in all probability, if my leg went down, it would be eighteen months and probably two years before I recovered the use of it. Then it was that X realized the seriousness of my injury, for the first time. A short time after that I gave notice to the defendant. Understand me, that personally I always attributed my injury or hurt to that accident; I thought it might be, but did not know positively; I had no means of knowing, until I was advised by a physician ultimately, that it was that. One doctor pronounced it rheumatism, and another pronounced it a sprain, and first one thing and another.”

It appears from, this evidence that the appellant did give notice as soon as he ascertained that the injuries were caused by accidentally stepping into the hole. If I am correct in the above views, appellant has complied with the requirements of the policy, and did give notice within a reasonable time after he ascertained that the injuries were the result of the accident. He was not even required to resort to the protection clause of the statutes, as to the time of giving the notice of the accident if the construction which I have given to the policy is correct, and which must have been the one understood by the parties when they entered into the contract. It is a well-established general rule that a policy should be liberally construed; that all its provisions, conditions, and exceptions, which in any way tend to work a forfeiture, should be construed most strongly against the insurer, for whose benefit they are inserted, and most favorably toward the insured, against whom they are meant to operate. A policy should be given a fair, business-like, common-sense interpretation. To construe it literally would be to give a meaning different from that which was understood by the parties. An insured should not be required to give notice of an accident, without there was a resultant injury of a substantial nature, sufficient to justify a claim for compensation under the policy. On the other hand, an insured should not be required to gire notice to the insurance company of an injury which he had not ascertained was the result of the accident. An honest person is to be commended, rather than condemned, in not giving notice of an accident, which under ordinary circumstances, is not thought likely to result in such an injury as to justify him in making a claim against an accident insurance company. The giving of notice of every accident, regardless of its trivial nature, before ascertaining whether the accident is going to result in causing a substantial injury, does not appeal to me to be just, and I do not think it was even contemplated by the parties, when they entered into the contract of insurance, that notice of every trivial accident should be given to the company.

Primarily, then, the question as to whether notice has been given within a reasonable time is for the jury. To become a question of law, for the court’s decision, the delay in giving the notice must be such that by reason of its duration it is clearly unreasonable. In Phillips v. U. S. Benevolent Society, supra, it was held that, where a policy requiring notice of an accident to be given within five days thereafter, a notice given within five days after the assured ascertained that the accident was the cause of the injury was sufficient. In People’s Mutual Accident Association v. Smith, supra, it was held that notice of an accident causing the loss of the sight of one eye need not be given until it has become reasonably certain that the sight of the eye has been lost, the claim being for such loss. Notice, then, of an accident should not be compulsory to a recovery until it is first determined that the accident is the cause of the injury. In the instant case I think it clearly appears from the record that the assured did give notice of the accident and of the injury within a reasonable time after it was determined that the accident was the cause of the injury. Common sense and reason should not and would not require the giving of notice at an earlier date.

As to whether the assured was acting as a prudent man in the determination as to whether or not the accident was the result or cause of the injury is a question for the jury, and comes clearly within the rule requiring issues of fact to be submitted to the jury.

If I am correct in the views above stated, then by the very terms of the policy it follows that a cause of action would not arise until notice had been given, and it appearing from the record that two years had not elapsed from the time that appellant gave notice of the accident and resulting injury before bringing his suit, the plea of the statute of limitation would be unavailing.

For the reasons indicated, I am of the opinion that this cause should be reversed and remanded for a new trial.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    RUSHING et al. v. CITIZENS’ NAT. BANK OF PLAINVIEW.
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1913.)
    1. Appeal and Ebeob (§ 482) — Supersedeas Bond — Appellate Coubt — Jueisdiction — Heabing.
    Under Rev. Civ. St. 1911, art. 1593, providing that the Courts of Civil Appeals shall have power, on affidavit or otherwise, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction, such a court, on an application by sureties to quash a supersedeas bond on appeal, had power to hear proof dehors the record as to the validity of the bond.
    [Ed. Error, 482.] Note. — For other cases, see Appeal and Cent. Dig. §§ 2259-2263; Dee. Dig. §
    2. Altebation oe Instbuments (§ 11) — Spoliation by Stbangee — EeiIbct—“Alteb-ation” — ‘ ‘ Spoliation. ’ ’
    Erasure of the name of a surety from a supersedeas bond, executed to perfect an ap; peal, by a stranger to the bond, was not an “alteration” which would invalidate the bond, but was a “spoliation” which would not affect its legality.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 57-76; Dec. Dig. § 11.

    For other definitions, see Words and Phrases, vol. 1, pp. 360-365; vol. 7, pp. 6615, 6616.]
    3. Appeal and Ebeob (§ 469*) — Supebsedeas Bond — Execution—Conditions — Failuee to Pebeoem — Estoppel.
    Where certain sureties on a supersedeas bond, executed to perfect an appeal, signed the same on condition that the appellant secure other signers, but, after signing, delivered the bond to the appellant without notifyiné the clerk not to accept the bond without such additional signatures, and the bond having been filed without such signatures, the signers on such condition were estopped to deny the validity of the bond because it had not been complied with.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2231, 2232; Dec. Dig. § 469.]
    Appeal from District Court, Hale County; L. S. Kinder, Judge.
    Action by the Citizens’ National Bank of Plainview against J. J. Rushing and others. Judgment for plaintiff, and defendants appeal. Separate motions by J. O. Harrall and J. L. Overall to quash the supersedeas bond, in which the bank intervened.
    Denied.
    Madden, Trulove & Kimbrough, of Amarillo, and Graham & Graham and Fred C. Pearce, all of Plainview, for appellants. Dalton & Russell and Mathess & Williams, all of Plainview, W. D. Benson, of Lubbock, and Turner & Wharton, of Amarillo, for appel-lees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This is an appeal from the district court of Hale county, Tex. The judgment rendered in that court was for an amount of about $14,000, also foreclosing a lien on certain land. The appellants executed a supersedeas bond, in the sum of $32,000. The name of two sureties, J. O. Harrall and J. L. Overall, appear to be signed to the bond. There is one other surety thereon, T. J. Flake. The record was filed in this court June 10, 1913, and on September 23d J. O. Harrall and J. L. Overall each filed separate motions, designated “Motion to Quash Supersedeas Bond.” On the 6th day of -October the appellee bank filed what is designated “Intervention of Citizens’ National Bank.” The two interventions are in the same language except as to the name of the surety presented in the motion to quash, and it is’as follows: “Now comes the Citizens’ National Bank of Plainview, and joins in the motion made herein by J. L. Overall to quash the appellants’ bond filed in this cause, and prays said motion be granted.” The appellants attack both motions because the sureties ‘have no standing in this court to make a motion to quash the appeal bond; that he is not a party to the suit, and that the issues cannot be tried in this court; that the question of the sureties’ liability is not a jurisdictional matter, but that it is merely an irregularity which may be waived; that the record was filed more than 30 days before the filing of the motion; and that rule 8 for Courts of Civil Appeals (142 S. W. xi) applies. The appellants also object to the consideration of the intervention on the ground that its right to make said motion had been waived under rule 8.

As grounds to quash the motion, Harrall set up: First. That the name J. O. Harrall is not the signature of this affiant, but was written by some one to him unknown and without his authority. That, upon the representations hereinafter set out, this affiant signed said bond; but that his signature has been erased and affixed by some one to him unknown, and without his knowledge or consent. Second. That he signed said bond at the solicitation of Fred C. Pearce, attorney for J. J. Rushing et al., defendants in said cause, and that said Pearce represented and stated to this affiant that the bond was only for $500. That the clerk of the district court of Hale county had fixed the probable amount of the costs in said cause' at $500, and that the costs would not exceed that amount, and that the bond presented to him was only to cover the costs in the case. They would get four or five other men to sign the bond, and even if appellants lost and the sureties had to pay the bond, which they would not have to do, “none ofi them could get hurt, as it was such a small amount.” That John Reed of Hale Center, was going to sign the bond, and' that they would get other good and solvent men to sign with them. That affiant never read the' bond and relied absolutely upon the statements of the said Pearce, and that said Pearce showed him where the said bond stated the amount was $500. That he would never have signed said bond if he had known it exceeded $500 or that it was other than a bond for the costs, and would never have signed it except for the statement that they would get four or five other good men to sign it and would not have signed it but for the statement that John Reed would sign it as surety. That there are only two other sureties on the bond, and affiant is informed that one of them, Overall, was induced to sign it upon practically the same representation as was this affiant, and that said Overall claims he is not bound and will file a motion to quash the bond and will be released. That said bond is in the sum of $32,000 and binds the parties to pay off and discharge the full amount of the judgment which may be rendered in said cause, “all of which was unknown to this affiant at the time he signed the bond, and he would never have signed it if he had known the true facts in regard to it.” This motion, or plea, was signed and' sworn to by J. O. Harrall, and the only affidavits supporting the statements therein are the affidavits of seven other parties who make affidavit that Harrall’s reputation for truth and veracity is good in the neighborhood where he resides.

Fred C. Pearce, by affidavit, denies every statement made by J. O. Harrall and states that he told him it was a supersedeas bond and that Harrall read over the bond fully; and J. E. Rushing also filed a supporting affidavit of Pearce, denying the statements made by Harrall; and J. J. Rushing, also by affidavit, stated that after the bond was signed he had a conversation with J. O. Harrall, that Harrall told him that Pearce read the bond over to him and asked him if the bond did not state that it was for $32,-000, and he said it did, and that Pearce told him that it was for an amount double the judgment, and that he told him the actual costs of the case would only be about $500, and in other particulars controverted I-Iar-rall’s statements. Harrall’s affidavit denies the statement of Pearce and J. E. Rushing.

J. .L. Overall, in his motion, duly sworn to, sets up, as a ground for quashing the bond, the erasure of Harrall’s signature from the bond and the resigning of it by some one else for Harrall, and further sets up: That it was executed upon the conditions hereinafter set out. That one of the appellants in this case came to the plaintiff at a point on the road from Plainview, Hale county, Tex., to this petitioner’s home north of Plainview, about 18 miles, and represented to this petitioner that said bond was a bond for the costs and that said bond was for costs for the sum of $500; that the day on which said conversation took place was the last day on which appellants had to file their appeal bond in this cause, and that if they did not make and file their bond on said day that the cause would go by default; that if this petitioner would sign said bond, he, the said J. E. Rushing, would have two other good and solyent sureties-to sign the said bond, making five sureties in all on said bond; that said other two sureties so to be gotten on said bond should be men vouched for by L. G. Wilson, who is a man well known to this petitioner, and further represented to this petitioner that he, the said J. E. Rushing, would not file said bond until such two other sureties signed the same. This petitioner at once said he would not sign said bond until he (petitioner) could come to town, Plainview, and see his attorney and counselor, but thereupon said J. E. Rushing further represented to this petitioner and told this petitioner that the two other parties he was to get on said bond as sureties and which Rushing said L. G. Wilson had agreed to get to sign the bond if this petitioner would sign it, living southeast of Plainview, Tex., as that was the last day, as it was necessary for said Rushing to go to see these two other parties and get back to Plainview and file the bond that night, he would not have time to wait for this petitioner to go to town to investigate the matter. It would be impossible to wait for said Rushing to see the other parties and get them to sign the bond, and unless this petitioner would sign the bond then and at once the appellants would lose their appeal. That the said Rushing was in such a hurry or appeared and pretended to be in such a hurry that this petitioner was not given and' did not have time, or opportunity, to read the said bond and did not know the contents thereof, and your petitioner shows further that some time after the above-mentioned conversation was had he met said Rushing in Plainview and asked said Rushing if he was successful in getting the other sureties on said bond, and said Rushing then told this petitioner that the said Rushing had gotten the other two sureties to sign the bond and had filed and had same approved, and that everything was all right. That this petitioner never found out or knew the amount of said bond, nor never found out or knew that no other person had signed said bond, as said Rushing had promised should sign the same, until the 6th day of August, 1913. Tour petitioner further shows that said Rushing never procured any other person to sign said bond as sureties; that there have never but three persons signed same as sureties; that said bond is for the sum of $32,000 and binds the bondsmen to pay off the judgment which may be rendered in this cause. Tour petitioner further says: That he would not under any circumstances and under any condition whatever sign said bond had he known that it was for so large an amount, or had he known that it was other than a bond for costs, and that he would not have signed said bond at all but for the understanding and agreement that two other good sureties vouched for by said L. G. Wilson should also sign said bond as sureties, with this petitioner, and that said bond was signed by your petitioner upon the express understanding and condition that it should be so signed by two other sureties, making five sureties in all, and upon the belief and understanding that it was a cost bond only for the sum of $500. That your petitioner relied wholly on the representations and promises so made by said J. E. Rushing, and would not have signed said bond but for said representations, but upon the conditions as aforesaid, that the other two sureties sign the same before it was filed or used.

Overall filed affidavits of T. E. Caldwell and wife, corroborating the statement with reference to the amount of the bond and getting additional sureties. He also filed affidavit of his daughter, Gertrude, to the same effect.

J. E. Rushing makes a controverting affidavit of Overall’s statement, denying every material statement of Overall, stating that he had read the bond over to Overall in full and Overall said he would sign the bond if Judge Kimbrough would represent them on the appeal, and he assured him that he would do so, and there was no promise to get additional sureties on the bond.

J. J. Rushing filed a controverting affidavit stating that some time in September, after he learned that Overall was making some complaints about the bond, he asked him about it, and that Overall stated he read the bond; that Overall told him that he told J. E. Rushing at the time that if he was going to retain Judge Kimbrough that he would sign the bond. The affidavit is in effect a denial of the material statements made by Overall in his statement.

Article 1593, R. S. 1911, provides: “Said courts (Courts of Civil Appeals) shall have power upon affidavit or otherwise as by the court may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.” Mr. Justice Gaines, after quoting Constitution, art. 5, § 3, which is substantially the same as the statute, said: “But we do not understand that this provision of the Constitution applies to questions which were put in issue, or which could have been put in issue, in the trial court, but only to such as may arise after a final disposition of the ease in the court from which the appeal is taken. It has been practically so decided. Chrisman v. Graham, 51 Tex. 454, and cases cited. Every court must, in the first instance, determine its own jurisdiction; and when a question affecting its jurisdiction has arisen in a court of appeals, after the final decision of the matters in controversy in the court a quo, the appellate court must, of necessity, hear evidence dehors the record in order - to determine it.” City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960. As we understand the authorities and statutes in this state, when a supersedeas bond is filed and approved by the clerk of the trial court within the time prescribed by law, the appeal is perfected, and the Court of Civil Appeals had jurisdiction. Articles 2101, 2099, R. S. 1911; Cruger v. McCracken, 87 Tex. 584, 30 S. W. 537; Dillard v. Wilson, 137 S. W. 152; Rowlett v. Williamson, 18 Tex. Civ. App. 28, 44 S. W. 624. If the sureties on the super-sedeas bond are not liable under the law and facts and no such bond executed as required, which will give this court jurisdiction or give it a right to render judgment thereon, then, as we understand, we can hear evidence dehors the record. In Cruger v. McCracken, supra, it is said: “It is a question of jurisdiction, and the court had the power to hear affidavits or other evidence in support of the motion and determine the issue.” Therefore we conclude we have the authority, when jurisdiction is acquired over the sureties on an appeal bond, to hear evidence on the question of their liability thereon; at least, the trend of the authorities of this state are in that direction.

The sureties present their application to be relieved from the bond, and, while they term it a motion to quash, we presume it should be treated as a petition in equity to relieve them from liability thereon, on account of fraud and misrepresentation in procuring their signatures. They attempt to sustain their position by affidavits, which affidavits are controverted, in every fact stated, by counter affidavits made by the appellants. In order for this court to settle the issues of fact, we must resolve ourselves into a trial court. From these affidavits it is impossible for this court to determine who are falsifying. Of a certainty, some one does not tell the truth. Under such condition, this court is unable to find the truth of the matter. In order to reach anything like a satisfactory conclusion, if one can in fact be reached, we would be compelled as a trial court, under all the tests prescribed for ascertaining the truth, to hear the evidence. The petitions filed herein by the sureties, however, can be tested, and we believe should be by the rules of law and equity applicable to an equitable proceeding for relief, on account of fraud'or misrepresentation.

It will be seen that Harrall, by his first ground,- alleges that his signature is not on the bond. He admits, however, having signed the same, but says that his signature was erased and afterwards affixed thereto by some one unknown to him and without his knowledge or consent. All other parties deny knowing anything of the erasure. The bond in the transcript in this case bears no evidence on its face of an erasure. The facts are uncontroverted that he signed the bond." originally and turned it over to appellants, who filed it with the clerk. The original bond is not before us. The evidence before us leads to no other conclusion than that a stranger to the bond made the erasure, if any was made. In such a case the erasure would not be an “alteration” in the meaning of that term, but a spoliation and, in legal contemplation, wholly immaterial and ineffective to give the bond any other or different meaning or operation than that which attached to it before such erasure. 2 Cyc. 151c; Tutt v. Thornton, 57 Tex. 35; Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449; Union National Bank v. Roberts, 45 Wis. 373; Dinsmore v. Duncan, 57 N. Y. 573, 15 Am. Rep. 534; Skelton v. Tillman, 20 S. W. 71. We think the petition should allege that the erasure was made by some one connected with the bond. This it does not do, but, on the. contrary, the affidavits indicated it was made by a stranger to the bond.

The next ground relied upon by both sureties is that it was represented to be for the sum of $500, and only for the costs, and that they did not know that it was for the sum of $32,000, and that it was a supersedeas bond. The allegations in either of the petitions are sufficient to relieve them, as we view the ease, from their obligation as made. They do not show they were by any Subterfuge prevented from reading the bond or that they could not read. No such fraudulent representation is alleged or shown, upon which they relied, as would excuse them from ascertaining the contents of the obligation they were signing. The bond is clearly written for the sum of $32,000. There was no fiduciary relation established between the parties alleged, nor was there any especial confidence pleaded as existing between the parties, which would excuse them from ascertaining the kind of instrument they signed.

By both petitions it is stated that the appellants were to secure other sureties on the bond before filing it, and that they would not sign it without the promise- to procure other solvent sureties thereon. The bond was delivered to one of the appellants who had signed the same as a principal obligor. There is no allegation that the appellee, the obligee in the bond, had notice of the condition upon which it was delivered to the appellants and no allegation that the clerk, whose duty it was to approve and file the bond, had notice of such condition. It has been held in this state, as well as in others, that when a bond is signed and left with the principal, who delivers it to the obligee therein, and who accepts and approves it, without notice of the conditions upon which it was signed, the sureties will be estopped from setting up such conditions. Ballow v. Wichita County, 74 Tex. 339, 12 S. W. 48; McFarland v. Howell, 16 Tex. Civ. App. 246, 43 S. W. 315; Dair v. U. S., 16 Wall. 1, 21 L. Ed. 491.

We see no reason why the principles of estoppel should not apply. Every reason of justice and good faith requires its application to covenants of this kind. The bond was in all respects regular and according to the prescribed form and accepted by the officer, whose duty it was to take it as a completed contract. There was nothing on the face of the bond to put the officer upon inquiry, or that there were conditions annexed to it, or that it was not in the amount agreed upon. Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371. Tbe Colorado Court of Appeals beld that a general demurrer was properly sustained to an answer denying liability on an appeal bond. The grounds alleged were that the principal therein induced the sureties to sign by representation that before the filing they would secure other sureties on the bond and that they notified the clerk to that effect before the bond was actually filed. The facts in that ease are much stronger than here. Irwin v. Crook, li Colo. App. 172, 52 Pac. 683; Id., 17 Colo. 16, 28 Pac. 549.

The case of Wilson v. King, 59 Ark. 32, 26 S. W. 18, 23 L. R. A. 802, was a ease in which John Farmer executed a bond to stay proceedings on the decree appealed from in a certain case. The defendant in the cause answered that at the time he signed the bond it was agreed with Mrs. Pillow that certain notes should be delivered to him for indemnity before the bond was filed. The Arkansas Supreme Court held that the defense was untenable; there being no evidence that the clerk of the court had notice before the bond was filed of the condition upon which it was to take effect. In the ease of Nash v. Fugate, 65 Ya. (24 Grat.) 18 Am. Rep. 640, the doctrine of estoppel was applied upon the bond, and in the course of the opinion quoted Judge Redfield’s article in the Law Register, 1864, as follows: “Where the surety intrusts the bond to the principal obligor, in perfect form, with his own name attached as surety, and nothing upon the face of the paper to indicate that others are expected to sign the instrument in order to give it full validity against all the parties, he makes such principal his agent to deliver the same to the obligee, because such is the natural and ordinary course of conducting such transactions; and if the principal, under such circumstances, gives any assurance to the surety in regard to procuring other cosureties or performing any other condition before he delivers the bond, and which he fails to perform, the surety giving confidence to such assurances must stand the hazard of their performance, and he cannot implicate the obligee in any responsibility in the matter, unless he is guilty of fraud or rashness in accepting the security.”

The Mississippi Supreme Court said: “It may be, as stated by the bondsmen, that they were misled by appellant into signing the bond, and that one of them notified the clerk, before the bond was filed, not to approve the same; but these matters cannot be adjudicated on this motion, or, for that matter, by the court on original proceeding here.” Douglas v. Parsons, 101 Miss. 620, 57 South. 624. We think it may be said that the courts generally look with disfavor upon such proceedings; but, under our statute, we perhaps are given the authority upon original hearing to go into an investigation of the questions here presented; but it occurs to us when a surety signs the bond for a specific amount and delivers it to his principal upon certain conditions, who he must know can and will file it with the clerk and thereby secure a stay of execution and entail labor and costs in the preparation of records, and the like, and who fails to notify the clerk of the conditions of the bond or the amount for which he signs, should be estopped from denying his liability on the bond after it reaches the appellate court. We do not feel disposed to encourage such practice and think that if sureties desire to protect themselves they should, under the authorities cited, at least have notified the obligee or the officers of the condition and request that it be not filed until the conditions are complied with. However, we do not lay down this as a rule, but hold under the pleadings the sureties present no grounds for relief in this case.

Both motions of the sureties will be overruled and the prayer of the intervener denied.


author: HARPER, J.

text:
    VALDEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Courts (§ 62) — Special Terms — Power to Call.
    The act of the Legislature authorizing a judge to call a special term of the court is constitutional.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 207, 210; Dec. Dig. § 62.*]
    2. Criminal Law (§ 1118) — Appeal — Review— Continuance.
    Where neither the motion for a continuance, which admittedly did not conform to the statutory requirements, nor the motion for a new trial, stated what the defendant expected to prove by the witnesses which he might desire to use, and it did appear that those witnesses knew nothing of the immediate transaction, the action of the court in overruling the motion will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §, 2926; Dec. Dig. § 1118.*]
    3. Witnesses (§ 40) — Competency— Child.
    Where the girl whom the defendant was charged with raping was only nine years old, but gave a clear, concise recital of the event, and was fully informed that she would be punished if she swore falsely, she was a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.*]
    4. Witnesses (§ 79*) — Competency of Witnesses — Province of Court.
    The competency of a child as a witness is a question for the court, and a requested charge on that issue was properly refused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 201-204, 216; Dec. Dig. § 79.*]
    5. Rape (§ 48*) — Evidence — Subsequent Declarations of Prosecutrix.
    Where a nine year old girl, who had been raped, met her mother near the scene, and not more than 10 or 15 minutes thereafter, while still laboring under the excitement incident to the commission of the offense, and immediately related the occurrence to her mother, her statements so made were admissible as part of the res gestse.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. §§ 67-69; Dee. Dig. § 48.]
    6. Criminal Law (§ 1171) — Trial—Misconduct or Prosecutor — Argument.
    In a prosecution for rape, a remark by the district attorney that there should be speedy trials and prompt convictions or mob law would result, while improper, does not require a reversal of the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 1171.]
    7. Criminal Law (§ 1037)— Appeal — Presenting Matters in Lower Court — Misconduct or Attorney.
    Remarks by the prosecuting attorney alleged to be improper will not be reviewed, where no charge was requested from the court in regard thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. ' 1037.]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Jesus Valdez was convicted of rape, and hie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of rape, and his punishment assessed at imprisonment in the penitentiary for life.

A special term of the district court was called by District Judge Mullally, at which appellant was indicted, tried, and convicted. Appellant, in proper motions and bills of exception, assails the order calling the special term of the district court, drawing and impaneling the grand jury, and impaneling the special venire of jurymen before whom he was tried. He contends that the act of the Legislature authorizing a judge to call a special term of court is unconstitutional. All these questions have been decided adversely to appellant’s contention in Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98, Ex parte John Boyd, 50 Tex. Cr. R. 309, 96 S. W. 1079, and McIntosh v. State, 56 Tex. Or. R. 134, 120 S. W. 455.

The next bill complains of the action of the court in overruling his application for a continuance. The motion does not meet the requirements of the Code; in fact, appellant’s counsel in an unsworn application states he cannot make a statutory showing. Under such circumstances we would not feel authorized to review the action of the trial court, as in the motion for a continuance nor in the motion for a new trial is it stated what appellant expects to prove by the witnesses he states he may desire to use. It is made clear that the witnesses named in the application could know nothing of the immediate transaction for which appellant was being prosecuted.

The girl alleged to have been assaulted was only nine years old. Upon objection being made to her being permitted to testify, she was examined by the court, and under its direction, and the court held her competent to testify. We have read the testimony on this examination, and do not think the court erred in so holding. She gave a clear, concise recital of the events transpiring, and was fully informed that she would be punished if she swore falsely.

Neither did the court err in refusing the special instructions requested in regard to this girl’s testimony. As to whether she was a competent witness was a matter for the court to decide, and this issue should not have been submitted to the jury.

The girl went to her uncle’s (the appellant) after some plates. While there she says he raped her. She started home at once, and on the way was met by her mother. The girl was still laboring under the excitement incident to the commission of the offense, and then and there detailed to her mother the entire transaction, and on the trial of this case her mother was permitted to testify to what her daughter told her. We think it clearly res gestas and admissible. Not more than 15 or 20 minutes had elapsed according to the girl’s testimony, and her mother would still have her laboring under the excitement incident to an offense of this, character,

The remark of the district attorney that “we should have speedy trials and prompt convictions, or mob law will be the result,” was improper, but not of that harmful nature under the facts in this case which would necessitate a reversal thereof.

The other remarks complained of, no charge was requested of the court in regard thereto, and under such circumstances we do not deem it necessary to comment thereon.

We have taken each of appellant’s bills of exception, although they were not filed within the time permitted by law, and we do this for the reason that appellant was sentenced to imprisonment for life in the penitentiary, and the attorney who defended him was doing so under appointment by the court, receiving no compensation for his services. Mr. Maney is to be commended for the able defense he made under such circumstances, but after a careful review of the record we are of the opinion no reversible error is shown in the record. The criticisms of the court’s charge are without merit.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    KELTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Assault and Battery (§ 96) — Criminal Prosecution — Self- Defense.
    In a prosecution for assault, the evidence tended to show that the wife of accused asked him for money to visit her relatives, and was told that he did not have the money, but would have it for her by June 1st; that she became angry and struck Mm on the head with a bucket, afterwards running up to him and biting his shoulder, when he reached down and got a rock and struck hack over his shoulder, hitting her on the head and making a small cut. Held, that an instruction that accused would be entitled to defend himself against the assault, although he should use no more force tha.n was necessary, was erroneous, as unduly limiting his right of self-defense.
    [Ed. Note — Eor other eases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    2. Assault and Batteby (§ 67) — Self-Defense — Assault by a Woman.
    One assaulted by a woman, even though his wife, has the same right of self-defense as in case of assault by any one else.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.]
    3. Assault and Batteby (§ 91) — Prosecution — Sufficiency of Evidence.
    Evidence held not to sustain a judgment of conviction for assaulting accused’s wife.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. § 91.]
    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Ed Kelton was convicted of assaulting his wife, and appeals.
    ^Reversed and remanded.
    Clyde F. Winn, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No, Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of an assault on his wife, and fined $25. His wife, the assaulted party, did not appear at the trial. The state introduced a witness who testified that immediately after the difficulty, or within five minutes, he had a conversation with the defendant in regard to the trouble between himself and his wife, and that appellant, in substance, stated that his wife asked him for money with which to visit her relatives. He informed her that he did not have the money, but would have it by the 1st of June, and would then furnish it to her. She became very angry, and struck him on the head with a bucket. After doing this she ran upon him and began biting him on the shoulder. He reached down and got a rock, which was used to keep the door open, and struck back over his left shoulder with it, hitting her on the head. There was a small cut on her head produced by the blow. This ended the trouble, and this is the state’s case. Appellant took the stand in Ms own behalf and testified as did the previous witness. He also stated that prior to his wife’s demand for money, she requested that she and her husband should leave the place where they were working. This he declined to do because he had entered into a contract to do the work. She then demanded the money to go and visit her relatives, which he states he was unable to give her, but stated he would do so about the 1st of June. He then testified that after striking him over the head she began biting him on the shoulder, and he reached down and got the rock and struck back over his shoulder, inflicting the wound on her head. It seems to be uncontroverted that this was the difficulty as it occurred, and tha't the wound was a slight wound.

The court charged the jury with reference to self-defense that appellant would be entitled to defend himself against the attack, although he should use no more force than was necessary. Objection was urged to this limitation to the right of self-defense under the facts. We believe this exception was well taken. However, beyond this, we are of opinion the state has not made out a case which would justify this conviction. While the assault upon a woman usually is aggravated assault, this does not deprive a party of his right of self-defense against an assault. His right, to defend himself against the attack ■ of a woman, or against his wife, under these circumstances would be the same as her right of self-defense against him or against any other person. As the case is presented by the record and the evidence from both sides, this conviction ought not to have been secured.

The judgment is reversed, and the cause is remanded.


text:
    COCKRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Kidnapping (§ 5*) — Enticing Away Child — Sufficiency of Evidence.
    On a trial for enticing a minor from the custody of her parent, evidence held insuflicient to support a conviction.
    [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. § 11; Dec. Dig. § 5.*]
    2. Ceiminal Law (§ 959*) — Motions fob New Trial — Scope of Hearing.
    On a motion for a new trial, where there was attached to the motion the affidavit of a person who did not testify on the trial, the court should have considered not only the evidence but the entire record, and, if the record disclosed that accused was guilty of no violation of law, the conviction should not be permitted to stand, even though proper diligence was not used to obtain such person’s testimony on the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.*]
    3. Kidnapping (§ 1*) — Enticing Away Child — “Entice.”
    A young lady who, rightfully or wrongfully, feeling outraged at her uncle’s treatment of Ms daughter, expressed her sentiments, said she would leave home before she would stand such treatment, and subsequently, after the cousin had left her home of her own will, against her ’ uncle’s wishes, went with her father and cousin to a party, and then accompanied the cousin in her hiding and flight from home, thus giving moral and active assent to her leaving home, was not guilty of knowingly enticing her cousin from the custody of her parent, under Pen. Code 1911, art. 1047, since “entice,” means to solicit, persuade, procure, allure to ill, attract, lure, draw by blandishment, coax, or seduce, and imports an initial, active, and wrongful effort, and under the statute accused must at least in part be the procuring cause of the minor leaving her parents.
    • [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. §§ 1-7; Dec. Dig. § 1

    For other definitions, see Words and Phrases, vol. 3, p. 2410; vol. 8, p. 7651.]
    Appeal from Coryell County Court; G. E. Johnson, Judge.
    Dula Cockrell was convicted of an offense, and she appeals.
    Reversed and remanded.
    H. E. Bell, County Atty., and R. B. Cross, both of Gatesville, and C. E. Lane, Asst. Atty. Gen., for the State.

      For otiler eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

The appellant was prosecuted and convicted under article 1047 of the Penal Code, which provides that, if any person shall knowingly entice any minor away from the custody of the parent, he shall be punished by a fine not less than $25 nor more than $200.

The evidence in this case would show that appellant is a young lady, 19 years of age, and that she lived with her father, Simon Cockrell; that her uncle Henry Cockrell had a girl named Edna, 18 years of age; that these girls associated with each other, and were cousins and intimate as friends. Edna is the girl whom appellant is charged with having enticed away from her home.

It appears that appellant was frequently at the house of her uncle, at least, until a short time before the alleged commission of this offense, and that Edna was frequently at the home of appellant’s father, her uncle Simon. Henry Cockrell objected to his daughter going to dances and parties. One night, some weeks before the alleged offense, Edna left home and went to church with a young man, with the knowledge of her mother, but without the knowledge or consent of her father. Her father whipped her for so doing, and appellant, being at Henry Cockrell’s home, remarked to Edna that she would not stand such treatment, but would leave home before she would submit to it. Henry Cockrell then told Lula, appellant, not to again come to his house, and it might be inferred that subsequent to this remark by Henry Cockrell the girls did not visit each other with the knowledge of Henry Cockrell. Henry Cockrell was called to Lampasas, and remained away from home one night. That night Edna spent with Lula at her home, and they, in company with Simon Cockrell, attended a party. Edna returned home next day, and did not want her mother to tell her father about her spending the night at Simon Cockrell’s and her going to the party. Her mother informed her that she would tell her father, when Edna remarked, “If you do, he will whip me again,” and informed her mother that, if she would mot promise not to tell her father, she was going to leave home. Her mother did not make the promise, and she packed her clothing in a sack, and called her cousin Lula over the telephone, and asked her to come down, as she had something to tell her. Lula said she was busy, and could not come, but for Edna to come to her home, and informed her that her brothers were hauling wood, and she could come with them. Edna took her clothes, got in the wagon, and went to Simon Cockrell’s and' Edna, Lula, and Simon Cockrell went to a party again that night. While at the party they learned that Henry Cockrell had returned home, and was hunting for his daughter, Edna, and had a shotgun with him. Simon Cockrell suggested to the girls that they return home to his, Simon Cockrell’s, house, and they started. Just before getting home, they saw Henry Cockrell drive up to Simon’s house, and the girls got out and hid, while Simon went on to the house. What took place when the two brothers met is not disclosed by the record; but later Simon Cock-rell returned to them, and carried them to Mrs. Carroll’s, where they remained all the next day, and the next night Edna decided to go to her uncle’s, Blaine Cockrell’s, at Lampasas. It is shown that at the suggestion of Mrs. Carroll Lula accompanied Edna to their Uncle Blaine’s home; Mrs. Carroll furnishing the money. When they arrived at Blaine Cockrell’s, apparently he was made acquainted with the circumstances, and he spirited her away, and the record would disclose that she is now with Mr. Bradley, in Bryan county, Okl.

Attached to the motion for a new trial is the following affidavit of Edna Cockrell: “My name is Edna Cockrell. I am 19 years old; my last birthday having been on the 4th of this month. On Monday before Christmas Sister Alafare had a few harsh words; but I did not think anything of that. But just after our little quarrel Papa came in, and said that, ‘when his children had to act that way, that they had stayed around him plenty long.’ On Thursday after that time Papa went to Lampasas, and I went to spend the night with my cousin, Lula Cockrell. When I was getting ready to go to Lula’s, Mama said that I had just as well take my things along with me, and fussed at me lots. After I came back from Lula’s on Friday morning, Mama said, ‘Have you got your stay out?’ and I told her, ‘No,’ and she said to go back and stay until I got my stay out. That night I went with Lula, Uncle Simon Cock-rell, and his son Ed, to a party at Mr. Chas. Jones’, and while I was there at the party I was told that Papa was looking for me with a gun. As soon as I heard this 1 went to Uncle Simon, and told him that if Papa was looking for me with a gun that I did not want to see him, and asked him and the other folks to go with me to his house. Before we got to Uncle Simon’s house we heard that Papa was at Uncle Simon’s, and I was afraid to go on there, so I asked Lula and Uncle Simon to go with me to Mrs. Carroll’s, and I spent the night there that night. Saturday about 4 o’clock I saw Papa coming with a gun, so I begged Lula to go with me and hide, which we did. We hid in the loft at Mrs. Carroll’s. I could not understand what he was saying to Mrs. Carroll, therefore do not know what happened much. Saturday night, about 5 or 6 o’clock, I begged to Lula to go with me to Lampasas, as X was afraid that Papa would come back, and if he did X was afraid that he would shoot me. We went on to Uncle Blaine’s that night, getting there about 3 or 4 o’clock in the morning. There was two boys with us, one with me, and one with Lula. Lula did not beg me to leave home, and had nothing to do with me leaving, neither did Uncle Simon or any one else, as I was just in fear that Papa would kill me or beat me up. I am certainly pleased with the place I am staying, and was never treated as well before in my life; I am at home with Mr. Bradley and his wife, and they are good to me as if I was their child. When I left Uncle Blaine’s I came on with him to Durant, and was at Mr. Bradley’s until Uncle Blaine put me in school at Sherman, Tex., and then I was advised that Papa was looking for me again, and I came back to Durant, and have been here since. I would have gotten to have gone to the Presbyterian College here; but after Papa came up here and raised such a racket they did not want to take me there. I don’t think that Papa treated me exactly right at home, and neither any one of the other children, therefore I was not satisfied. Nobody had anything to do with me leaving home, as I was tired of living in such a place, and being treated as I was. I have answered all the questions I know about, as the facts, and nobody was to blame except me and my own folks for me leaving. Edna Cockrell.”

While perhaps the court ruled correctly that, if appellant desired the evidence of Edna Cockrell on her trial, she should have made some effort to secure her depositions before announcing ready for trial, and this alone would not be ground for a new trial; but, in passing on the motion for a new trial, not only the evidence on the trial but the entire record should be considered by the court, and, if this record discloses that the prisoner on trial is guilty of no violation of the law, in our opinion, it would be wrong to permit a conviction to stand, even though proper diligence had not been used.

The law desires the punishment of no innocent person, and this record convinces us that appellant is not guilty of the offense of enticing Edna Cockrell away from the custody of her parents. It would seem to us that, if any one in censurable, it would be the brothers of Henry, Simon and Blaine Cockrell, more than this young lady. Prom the record in this cause, as made by the state, the most she can be said to have done is that, rightfully or wrongfully, she felt outraged at the way Henry Cockrell was acting toward his daughter Edna; that she expressed such sentiments, and said she would leave home before she would stand such treatment; that subsequently, against her uncle’s consent, she went with her father and Edna to a party, and then accompanied her in her hiding and flight from home, thus giving moral and active assent to Edna leaving home — but Blaine Cockrell appears to be the person who placed the girl beyond the limits of the state, and he did so intending to educate her.

The question presented is, If Lula did all the state’s evidence would show her to have done, would this law make her guilty of enticing Edna from the custody of her parents? According to Mr. Bouvier, “entice” means to solicit; to persuade; to procure— citing 12 Abb. Pr. U. S. 187. Am. & Eng. Enc. of Law says: Entice means to allure to ill; to attract; to lure; to draw by blandishments ; to coax. Cyc. gives the definition: To allure to ill; to attract, to seduce; to coax; a word which may import an initial, active, and wrongful effort. Worcester, in his dictionary, gives the word the same meaning as given by Am. & Eng. Enc. of Law, and, as used in our statute in this provision of the Code, we think it must be shown the minor left the home of its parents at the instance, suggestion, and by the persuasion of the person accused — the-person before he1 can be adjudged guilty under this statute must, at least, be in part the procuring cause of the minor leaving her parents. In this case the record does not prove that appellant was the procuring cause of the minor leaving her home; but, on the other hand, it tends strongly to show she left of her own will, and received only the protection of her uncles and cousin after she had abandoned her home. It may be that from a moral standpoint they should have persuaded, or attempted to persuade, Edna to return to her father. This they did not do; but their failure to do so would not render them guilty of a violation of the law.

Deeming the evidence insufficient to sustain the conviction, we do not deem it necessary to discuss the other questions raised.

The judgment is reversed and remanded.