Appellee, Manley, brought this suit against appellant upon a health insurance certificate seeking to recover for a total disability for a limited period of time and for subsequent partial disability for a limited period of time.
By special pleas the defendant set up the failure of the appellee to give notice of his claim within 7 days after his disability accrued and within 30 days after his recovery. Appellee excepted specially to appellant’s plea of failure to give such notice which exceptions were by the court sustained. The case was tried before a. jury, which rendered a verdict as follows:
“We, the jury, find for the plaintiff in this case for
Total disability.5133%
And for partial disability. 120
Total . 5253%”
[1] Upon the verdict judgment was rendered in favor of appellee for the sum of $153.33%, with 6 per cent, interest thereon from June 1, 1918. .The action of the court in sustaining the exception to the answer is first assigned as error. This question is ruled by the previous decisions of this court in Independent Order of Puritans v. Lockhart, 212 S. W. 559, and Insurance Co. v. Bosworth, 156 S. W. 346. Upon the authority of these eases the assignment is overruled.
[2, 3] It is next assigned as fundamental error that the judgment in this case does not conform to the verdict rendered in that the verdict is for the sum of “$253%” and the judgment rendered by the court is for the sum of $153.33%. The proposition advanced is that the judgment of the court must conform to the verdict of the jury. This contention is well taken. The court should have rendered a judgment for $253.33. The judgment rendered was for a less amount than what it should have been, and we fail to see why the appellant should complain of it. However, the judgment is erroneous in the particular complained of, and, since appellant assigns the error and complains thereof, it is the duty of this court to correct the same and render the proper judgment-upon the verdict. See article 1626, R. S.
It is next assigned as fundamental error that the court erred in allowing interest from June 1, 1918, when the verdict of the jury did not find for any interest whatever. This also is a matter which this court may correct.
Upon the two errors assigned as fundamental the judgment of the court below is reversed, and judgment here rendered in favor of the appellee for the 'sum of $253.33,' with interest thereon from the date of the judgment in the court below, to wit, February 28, 1919, at the rate of 6 per cent, per annum.
[4] In view of the fact that the errors indicated were in no wise called to the attention *648of tlie court below and are here presented for the first time, it is deemed proper that the costs of this appeal should be taxed against the appellant. Had the matter been brought to the attention of the lower court, no doubt it would have been there corrected. Wetmore v. Woodhouse, 10 Tex. 33.
Reversed and rendered as indicated, and costs of appeal taxed against appellant
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