
    FIRST TEXAS STATE INS. CO. v. HARE.
    (No. 7.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1915.)
    1. Insurance <&wkey;>539 — Health Insurance— Provision eor Notice — Validity — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, providing that a stipulation in a contract requiring notice of any claim of damages within less than 90 days shall be void, a provision of a health insurance policy requiring notice within 90 days from the beginning of illness was void. .
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. <5&wkey;539.]
    2. Appeal and Error &wkey;>230 — Assignments oe Error — Assignment in Brief.
    An assignment of error outside of the assignments in the motion for a new trial, first presented in the record in appellant’s brief, is too late for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>230.]
    3. New Trial <&wkey;108 — Newly Discovered Evidence — Change in Result.
    A new trial on the ground of newly discovered evidence will not be granted where such evidence could not change the result of the action.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. &wkey;108.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    Action by H. C. Hare against the First Texas State Insurance Company, continued after plaintiff’s death by his widow, Annie Hare, for herself and as next friend of her infant child. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    B. L. Ayeock, of Eountz, for appellant. V. A. Collins, of Beaumont, for appellee.
   MIDDLEBROOK, J.

This suit was instituted by appellee, H. C. Hare, against the appellant, First Texas State Insurance Company, in the justice court, precinct No. 1, Hardin county, Tex., for $112, alleging that said amount was due him under health dause in policy issued to him in January, 1913. H. C. Hare died before trial of the'case, and by due course of pleading, on August 7, 1915, Annie Hare suggested the death of her husband, H. O. Hare, and made berself party plaintiff by order of tbe court duly entered. Tbe case then went to trial, resulting in a judgment for tbe amount sued for in favor of plaintiff. Defendant insurance company perfected its appeal to tbe county court.

In due time and by proper pleadings Annie Hare suggested to tbe court tbe birtb of a posthumous child, unnamed infant, and son of H. O. Hare, deceased, and by permission of tbe court, intervened as next friend for said child, and prayed that be be adjudged one-half of tbe amount sued for. Upon these pleadings tbe case went to trial in tbe county court January 5, 1915, and tbe trial resulted in a judgment for tbe plaintiff, Annie Hare, for berself and as next friend for her infant child, in tbe sum of $112 and from this judgment tbe defendant insurance company perfected its appeal to tbe First Court of Civil Appeals at Galveston, and tbe case is now before this court by transfer made by tbe Supreme Court of Texas.

There is no statement of facts in the record, tbe case having been tried by tbe court, and tbe trial court filed bis conclusions of law, and findings of fact, in tbe case. Tbe contract, among other things, provides:

“Failure on tbe part of tbe insured or beneficiary to give written notice to tbe company, or to the nearest or any other of its convenient local agents within 90 days from the date of any injury, fatal, or nonfatal, or of tbe beginning of an illness for which claim is to be made, with full particulars thereof; and full name and address of the insured upon regular blanks furnished by the company shall limit the liability of the company to one-fifth of the amount that would otherwise be payable thereunder.”

Tbe trial court found that such notice was not given to tbe appellant company. He further found that on tbe second day of Hare’s sickness, Mrs. Hare called in one W. H. Snow, who was local agent for appellant, and who collected tbe premiums on tbe policy sued on from tbe 13th day of February, 1913, to and inclusive of tbe 13th day of September, 1913, three or four months of this time being tbe same time that H. G. Hare was ill, and during much of which time H. O. Hare was unconscious, and for tbe whole of said time was unable to do any sort of business. He also found that tbe receipts for such premiums contained tbe following stipulation :

“Notice: This receipt is not valid for mote than one month’s premium, or if any change or erasure is made-herein; nor will it be valid unless countersigned and delivered by an authorized collector of the company before the expiration of the month named, and dated so as to show the true date of payment of the premium. If said premium is not paid on or before the first of the month above named said policy shall lapse and the liability of the company cease, except as otherwise provided in said policy.”

He further found that Mrs. H. 0. Hare asked Snow to make a written report to bis company on tbe second day of H. 0. Hare’s illness, and Snow promised her be would do so, but he did not make such written report. He also found that H. 0. Hare was sick with typhoid fever for a period of 118 days, and that for a period of more than 90 days was unable to attend to any business; and be also found that Drs. Roark and Thomas made written report to tbe company on its blanks after 90 days from the beginning of Hare’s illness. This is a sufficient correlation of tbe facts for an understanding of tbe case.

Appelant contends: (1) That tbe written notice not having been given as stipulated in tbe contract, tbe appellee cannot recover more than one-fifth, $22.40, of tbe amount provided by the policy for the length of time Hare was sick. (2) That a new trial should have been granted by tbe trial court, because that court erroneously found Snow to be tbe agent of tbe insurance company. (3) That a new trial should have been granted on newly discovered evidence. We dispose of tbe issues in their order.

Tbe stipulation in tbe contract requiring written notice to be given within 90 days from tbe beginning of tbe illness is contrary to our statute, and is therefore void. It limits tbe time of notice to less than 90 days. Vernon’s Sayles’ Ann. Civ. St. art. 5714; Casualty Co. v. Nelson, 153 S. W. 674; Telegraph Co. v. Smith, 130 S. W. 622. Tbe trial court found that written notice was given upon tbe company’s blanks in a reasonable time from tbe beginning of Hare’s illness. This being true, we deem it unnecessary to pass upon tbe proposition of Snow’s agency for tbe company.

There is set up in appellant’s brief what be terms his assignment of error outside of tbe assignments in bis motion for a new trial. This is presented for tbe first and tbe only time in tbe record of this case, in appellant’s brief, and it comes too late for consideration by this court.

We do'not think tbe assignment of newly discovered evidence requires consideration under our disposition of tbe case because, if true, and if such evidence bad been introduced upon tbe trial of tbe case, it could not change tbe result of this suit.

Our conclusion is that there is no error requiring a reversal of this case, and that it should be affirmed, and it is so ordered.

Affirmed.  