This case was presented before Special Chief Justice Robert H. ROGERS, Associate Justice J. W. SPIVEY and Special Associate Justice Walton D. TAYLOR. A majority opinion was written by Associate Justices SPIVEY and TAYLOR, reversing this case. A motion for rehearing was filed, and before it had been acted upon Justice SPIVEY'S term of office expired and he was succeeded by Associate Justice STANFORD. When the motion for rehearing was presented, the same was granted and the case affirmed by Special Chief Justice ROGERS and *Page 252 Justice STANFORD, with Special Associate Justice TAYLOR dissenting. All former opinions were withdrawn. I cannot agree to the opinion affirming this case, and therefore file this, my dissenting opinion.
This suit was instituted by the appellee, Mrs. Adah Melaun, against appellant in the Fourteenth district court at Dallas. As a basis of her suit she alleged that the appellant had issued and delivered its accident insurance policy upon the life of her husband, in which she was the sole beneficiary, and that all premiums had been paid thereon at the time of the death of her husband, Fred J. Melaun; alleging that her said husband died as the result of an accidental fall as follows:
"Plaintiff represents that Fred J. Melaun, on the __ day of April, 1922, received serious injuries from a fall upon a concrete floor at his place of business in the city of Dallas, from which fall and injuries he died on the 26th day of May, 1922, and further that said fall caused injuries of a serious nature and caused the said Melaun to suffer intensely for a long time thereafter, and caused him to have fainting spells; that after said accident as aforesaid, on or about the __ day of May, 1922, as a result of the serious injuries received and while in a dazed condition, he again fell upon the floor of the said shop and struck his head with great violence and force upon the concrete floor thereof, thereby inflicting serious injuries rendering him unconscious; and that by reason of such injuries the said Melaun died on the 26th day of May, 1922."
The appellant pleaded a general denial, and in addition thereto pleaded, among other things, the following in bar of plaintiff's cause of action:
"That clause 8 of article 9 of the policy sued upon reads as follows: `The association or its representative shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of the claim hereunder, and if an autopsy be made, the association shall be given timely notice thereof, and the right and opportunity for its representatives to attend and participate.'
"That provision 6 of article 10 of said policy is as follows: `Strict compliance on the part of the insured and beneficiary with all provisions of this policy is a condition precedent to recovery hereunder.'"
And in this connection the appellant pleaded that an autopsy was held, and that the appellee failed to give appellant company notice thereof, and that the company had no notice of such autopsy until after the deceased had been buried; that appellee's failure to give notice as required by said policy was a condition precedent to her right of recovery; and therefore that there was no liability to the appellee under the policy sued upon. In response to this defense of the insurance company, the appellee pleaded in substance as follows: That at the time of the accident sustained by her husband, and from then up until his death and burial, she was seriously ill and was unable to attend her husband during his illness, and had little opportunity of communication with him, and that by reason of her serious condition after her operation she was not advised of his condition; that she did not know the terms and conditions of the insurance policy, and that such policy was in the hands of her mother, and that at the time of her husband's death she was unable to look after any of the details connected with the burial of his remains and was unable physically or mentally to give proper attention to such business at the time of the death of her husband, and that she did not know that said policy was in force and effect until after his burial; that immediately after the burial she learned that said policy was in force, and that after being so informed her attorney immediately communicated with the defendant company, advising it of the death, burial, and autopsy of her deceased husband, and that thereafter such company, through its secretary, furnished blanks to be used in connection with the proof of death of the assured; that the furnishing of such blanks under such circumstances as alleged estopped the defendant from denying liability under said policy; and further pleaded that immediately upon the company denying liability because no notice of the autopsy had been given it, she offered to allow the insurance company to exhume the body of her deceased husband and then examine him.
The case was tried before the court without a jury, and judgment was rendered in favor of the appellee. The controlling question in this case, in my view of the record, is whether the plaintiff is entitled to recover under the pleadings upon which this case was tried. The policy provided:
"If an autopsy be made the association shall be given timely notice thereof and the right and opportunity for its representative to attend and participate."
And further:
"Strict compliance on the part of the insured and the beneficiary with all the provisions of this policy is a condition precedent to recovery."
In my opinion, both of these provisions of the policy are valid. They are not unreasonable; they contravene no statute, and cannot be said to be against public policy, and therefore void.
The undisputed testimony was to the effect that the deceased died on Friday, the 26th day of May, 1922. An autopsy was held on the following day, and that the insurance company did not receive any notice thereof until June 1st following, and had no knowledge thereof. I believe that when the appellant pleaded the provisions of this policy in bar of the plaintiff's cause of action in connection with an allegation that an autopsy had *Page 253 been held and notice had not been given as required by the policy, it was then incumbent upon the appellee to allege and prove some fact or facts that would entitle her to recover notwithstanding her failure to give the insurance company timely notice of the autopsy and an opportunity to be present and participate therein; and it appearing from the record in this case that the matters pleaded by appellee in reply to appellant's plea in bar were not sustained, she should have alleged that notwithstanding her failure to comply with such provisions of the policy the insurance company was not injured as a result of such failure or breach of the contract; and in that connection, the facts as to why no injury was thereby sustained by the insurance company, and to follow such allegations by evidence showing that no injury was done the insurance company by reason of the beneficiary failing to comply with said provisions of such contract, before she was entitled to recover herein. This provision of the policy being a valid one, and another provision rendering same a condition precedent to recovery, the appellee was not entitled to a judgment under the record in this case unless she at least showed that notwithstanding her failure to comply with such provision, no injury or loss was sustained by the insurance company. Otherwise, such provision would be nugatory and valueless to the insurance company. In this connection, I call attention to the fact that the insurance company did not require by the provisions of its policy the right to have an autopsy made or exhume the dead for that purpose, but its policy simply provided that if such examination was made, it should be given timely notice thereof and the right to have a representative present and participate in the autopsy. What is there about such a provision in an accident insurance policy that would render it invalid? The very fact that the relatives of the deceased wanted and had an autopsy made shows that they were not satisfied as to the cause of his death. If those near and dear to him had reasons sufficient to cause this unusual thing to be done, then it seems that it was both proper and prudent for the insurance company to at least have a representative present when the autopsy was made, in order that it might be fully informed as to the cause of his death so far as the autopsy might show. This was a valuable right, and the appellee, by her conduct, denied it such right and benefit as it might have derived by having a representative present at the autopsy. The appellee contends that the case should be affirmed because the evidence shows that no harm was done appellant by reason of appellee's failure to comply with such provision of the insurance policy. Without passing upon the effect of the evidence in this case, it is sufficient to say that in the absence of any pleading by appellee to the effect that no injury was suffered by the insurance company, this evidence is not available to appellee. Texas Banking Ins. Co. v. Stone, 49 Tex. 4; Texas Fire Ins. Co. v. Knights of Tabor, 32 Tex. Civ. App. 328, 74 S.W. 809; Mosness v. Insurance Co., 50 Minn. 341, 52 N.W. 932; Joyce on Insurance, vol. 4, § 3674.
The question of the failure of appellee to plead some valid reason why notice was not given is not raised in appellant's brief, but it appears from the face of the record. It is fundamental in character, and is an error of such serious import that this court is not warranted in overlooking it.
The appellee, as beneficiary under such policy, under the facts of this case, was charged with full notice of all the terms and provisions of such policy. It appears from the testimony that this policy was in appellee's home, and in the hands of her mother, who was with appellee and her husband during his illness from the time of his fall in April until after his death and burial; that appellee was sitting up, and able to walk around by holding to something at the time of the death of her husband, and knew of the existence of such policy; that she in person placed said policy in the hands of an attorney a few hours after her husband's death, showing that she not only was able to but actually did attend to this important business matter. Klein v. New York Life Ins. Co., 104 U.S. 88, 26 L.Ed. 662; Ætna Ins. Co. v. Holcomb,89 Tex. 404, 34 S.W. 915; Insurance Co. v. Lillard (Tex.Civ.App.)174 S.W. 619; Joyce on Insurance, vol. 2, § 848.
The fact that appellee was convalescent from a protracted illness is no excuse in law for her failure to comply with the provisions of the policy. Brotherhood of Railroad Trainmen v. Dee, 101 Tex. 597, 111 S.W. 396; Woodmen v. Wagnon (Tex.Civ.App.) 164 S.W. 1083; Bost v. Supreme Council,87 Minn. 417, 92 N.W. 337.
The company is not estopped from asserting the hereinbefore mentioned defense to plaintiff's cause of action because it furnished blank proofs of death to her, for the reason that at the time the insurance company mailed such blanks to her, they were accompanied by a letter containing, among other statements, the following language:
"You will find herewith blanks to be executed, one by the beneficiary, one by the undertaker, one by the person or persons who witnessed the accident, and the other by the attending physician. * * * You will understand of course that the association, by sending these blanks, waives none of its rights, but on the contrary hereby expressly reserves the right to interpose any and all legal defenses it may have to Mrs. Melaun's claim, including any objections to the proofs furnished, either as to substance or form."
It is sufficient to say that the rule is well established in this state that where such *Page 254 blanks are furnished with the express understanding that the company, in sending them, does not waive any of its rights, then a waiver did not occur, and consequently it is my opinion that the insurance company was not estopped from asserting the defense. Roberts v. Ins. Co.,19 Tex. Civ. App. 338, 48 S.W. 559; Insurance Co. v. Weeks Drug Co.,55 Tex. Civ. App. 263, 118 S.W. 1086; Security Ben. Ass'n v. Webster (Tex.Civ.App.) 230 S.W. 219; Loesch v. Casualty Co., 176 Mo. 654,75 S.W. 621.
Appellant assigns error because the court, over objection, permitted the witnesses Clarence Green, Mrs. Martin, and appellee to testify to certain statements made by deceased shortly after his fall in April and immediately following his regaining consciousness. In my opinion, this testimony was property admitted. It was part of the rest gestae, and therefore the assignments relating to it should be overruled.
Appellee also assigns error upon the action of the court in permitting appellee, her mother, and her physician to testify, over objections, to appellee's physical condition, the effect o which was that she was recovering from childbirth delivered with instruments, followed by an operation, and that she was in a weak condition. I believe such testimony was immaterial and should not have been admitted.
It was error for the court to permit the witness Westerfelt to testify to a conversation and introduce in evidence a letter, over objections of defendant, to the effect that about a month after the autopsy he called upon the officers of defendant and offered to have the body exhumed and let them hold another autopsy, and of their refusal of the offer.
It was also error to permit the witness Westerfelt to testify, over objection to a that he went to a doctor's office and asked him, in effect, if an autopsy held a month after death would show the same things as one held the day after death; that the doctor replied that he did not know, but believed it would, and that he would call Dr. Tompkins up and secure his views upon the matter. Such testimony was hearsay, irrelevant, and immaterial.
I believe it was also error to permit the witness Westerfelt to testify over objection, that the general attorney and other representatives of defendant, 30 or 40 days after the burial of deceased, refused an offer to hold an autopsy upon the body of deceased; this evidence being immaterial.
There are some expressions in the majority opinion in their findings of fact to which I do not agree. The testimony as to what caused the deceased to fall is far from satisfactory, and there is about as much reason to believe that his fall was produced by a diseased condition as there is that he fell because he slipped upon a wet floor. In the majority opinion it is said:
"There is no evidence that the appellee was consulted about said autopsy or that she knew anything about it until after it was done."
It might also be said that there is no testimony even indicating that she was not fully aware of the autopsy and did not acquiesce therein. In this connection Mrs. Melaun testified:
"I was weak. I had had an operation. I was able to be up, was not able to do any housework. I knew my husband had a policy with the defendant. I learned that the policy was valid and binding after I called Mr. Westerfelt and we were looking for some papers. My husband died on Friday at 10:30. Mr. Westerfelt came out and took charge of the papers on Saturday."
The autopsy was conducted by the appellee's family physician, and in the absense of any testimony even tending to show that she did not know of and acquiesce in an autopsy being made, it ought to be presumed that she did acquiesce therein. In my opinion, it is of little importance what her physical condition was; she was bound by the provisions of this insurance policy; but the record fails to show that her condition was such that she did not know of the policy. She testified that she did know of it, and it appears that before her husband had been dead 24 hours she had an attorney call upon her and delivered him the insurance policy and talked to him about same, and therefore I cannot agree to that expression in the majority opinion as follows:
"At the time of her husband's death she was not able physically or mentally to do anything, and continued in such condition for some time after her husband's death."
In my opinion, the judgment of the trial court should be reversed and the case remanded. *Page 255