
    INTERNATIONAL TRAVELERS’ ASS’N v. GUNTHER.
    (No. 765-4364.)
    (Commission of Appeals of Texas, Section. A.
    Feb. 10, 1926.)
    1. Insurance <&wkey;53U/2, New, vol. I6A Key-No. Series — Where accident policy was taken out in addition to another policy prorating other insurance on same loss, beneficiary held not entitled to recover full amount of latter policy.
    Where policy insuring against death or injuries through accidental means provided that, in case of other insurance on same loss, without written notice, insured should be entitled to only a proportional amount of insurance, a rider in another policy of insured covering loss of life only when caused by accidental means necessarily covers the same loss as the first policy in respect to death of insured, and hence beneficiary of insured, on his death by accident, was not entitled to judgment for full amount of the first policy.
    2. Insurance <&wkey;53l|/2, New, vol. I6A Key-No. Series — Statute held not to prevent stipulation in policy prohibiting recovery in whole or in part, if other insurance was taken out covering the same loss.
    Rev. St. 1925, art. 4797, does not prevent parties to accident insurance contract from stipulating that a failure of insured to give written notice of other insurance covering the same loss shall defeat a recovery under the policy in whole or. in part, nor does it prevent such stipulation from furnishing a legal defense to a recovery on the policy.
    3. Insurance <@=^531 </2, New, vol. I6A Key-No. Series — Provision in statute that insurer’s liability shall be subject to such legal defenses as it may have against same refers to money specified.
    In Rev. St. 1925, art. 4797, providing that insurer shall be liable for full amount stated in policy, subject to such legal defenses as it may have against same, the word “same” refers to sum of money specified, and stipulation in accident policy, that, if insured carries other insurance covering the same loss-, without notice, insurer’s liability is reduced in ratio therein stated, furnishes such a legal defense.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Elenor L. Gunther against the International Travelers’ Association. Judgment for plaintiff was affirmed by the Court of Civil Appeals (269 S. W. 507), and defendant brings error,
    Reformed and affirmed.
    Seay, Seay, Malone & Dipscomb, of Dallas, and Mann, Neel & Mann, of Laredo, for plaintiff in error.
    Hicks, Hides, Dickson & Bobbitt, of San Antonio, and R. D. Wright and S. T. Phelps, both of Laredo, for defendant in error.
   BISHOP, J.

On May 8, 1922, the plaintiff in error, International Travelers’ Association, a mutual assessment accident insurance home company, incorporated under chapter 5, title 71, of the Revised Civil Statutes of 1911 (chapter 6, title 78, R. C. S. 1925), issued the accident and health policy involved in this suit, insuring John E. Gunther against death or injury through accidental means. This policy provided for indemnity in case of death by accident in the sum of $6,000, payable to his estate, and in article 10, section 17, contained a provision as follows:

“If the insured shall carry with another company, corporation, association, or society other insurance covering the same loss without giving written notice to the association, then, in that case the association shall be liable for only such portion of the indemnity promised as the said indemnity bears to the total amount of like indemnity in all policies covering such loss, and for the return of such part of the premium paid as shall exceed the pro rata for the indemnity thus determined.”

While this policy was in force as a binding obligation, on October 7, 1923, John F. Gunther was fatally injured by being thrown from an automobile in which he was riding, and died as a result thereof on October 9, 1923. His wife, Elenor L. Gunther, is his sole surviving heir. Shortly after his death she made application, and was appointed temporary administratrix of his estate, with authority to collect the amount due under this- policy, and she duly qualified as such temporary administratrix. She gave due notice of the injury and death of her husband, and within the time provided by the policy furnished all necessary proof of injury and death, and requested payment of said policy in the sum of $6,000.

At the time of his death, John F. Gunther carried a life insurance policy in the Bankers’ Life Company of Des Moines, Iowa. This policy insured him against death from any cause in the sum of $5,000. Attached to this policy is a rider termed “agreement for double indemnity benefit.” By the terms of this rider, for “an additional premium of $5.00 per annum, payable until the expiration of the policy year nearest the sixtieth anniversary of” the birth of John F. Gunther, he was insured in the sum of $5,000, in addition to the $5,000 provided for in said policy, against death “resulting directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause,” in case death should “occur within sixty days after sustaining such injury and before the expiration of the year nearest the sixtieth anniversary of his birth.”

After the death of John F. Gunther, the $5,000 provided for in said policy, and also the additional $5,000 provided for in the rider attached thereto, were paid to Elenor L. Gunther by Bankers’ Life Company. No written notice was given the International Travelers’ Association of the insurance carried in the rider attached to the Banters’ Rife Company policy, nor did it have any notice thereof.

She, as temporary administratrix of the estate of her deceased husband, filed this suit in the district court of Webb county against plaintiff in error to recover the $6,000 provided for in its accident policy. It admitted liability under the terms of the policy, but alleged that the insurance in the sum of $5,000 provided for in the rider attached to the Bankers’ Life Company policy was “insurance covering the same loss” as that provided for in the policy upon which recovery was sought, and that under the provision contained in article 10, section 17, above quoted, it was liable only for the proportionate sum which $6,000 bears to $11,000, the total amount covered by this policy and the rider attached to the Bañkers’ Life Company policy, and the amount of the premiums paid by John F. Gunther in excess of that required for the payment of premiums on this proportionate sum.

The trial court rendered judgment for defendant in error for the full amount stated in the policy here involved, and this judgment was affirmed by the Court of Civil Appeals. 269 S. W. 507. '

The only question here presented by plaintiff in error is whether the insurance carried by John F. Gunther in the rider attached to the Bankers’ Life Company policy covers the same loss as that covered by its policy. If it does, the judgments here rendered are erroneous, and should have been for the sum of $8,308.24 only. The rider covers loss of life only when caused by accidental means, and the policy involved in this suit covers loss of life under no other contingency. The two overlap in the only contingency provided by the rider. As to the loss of life, their coverage is identical, and the rider covers no other loss. The rider covers no loss in any respect in which same is not also covered by this policy. Therefore, they both necessarily coven the same loss in respect to the death of John F. Gunther.

Defendant in error claims that article 4S07 of chapter 5, title 71, of the Revised Civil Statutes of 1911 (article 4797, chapter 6, Revised Civil Statutes 1925), renders void the stipulation contained in section 17, article 10, of this policy to the effect that, if the insured is carrying other insurance covering the same loss, without giving notice, then its liability would be reduced in the ratio therein stated.

This article is as follows:

' “Every policy or certificate issued by any such corporation shall specify the sum of money Which it promises to pay upon the contingency insured against, and the number oí days after the receipt of satisfactory proof of the happening of such contingency at which such payment shall be made; 'and, upon the happening of such contingency, such corporation shall be liable for the payment of such amount in full at the time so specified, subject to such legal defenses as it may have against same; provided, that, if the sum realized by it from assessments made in accordance with its by-laws to meet such payment, together with such other sums as its by-' laws may provide shall be used for that purpose shall be insufficient to pay such sum in full, for which it is so liable, then the payment of the full amount so realized shall discharge such corporation from all liability, by the reason of the happening of such contingency, and in that event such corporation shall be liable only for the amount so actually realized.”

This article provides that the corporation shall be liable for the full amount stated in the policy, “subject to such legal defenses as it may have against same.” The word “same” here used refers to and means the sum of money specified. There is nothing in this article to indicate that the parties to the contract of insurance may not make and stipulate in the contract a provision that a failure of the insured to give written notice of other insurance covering the same loss should defeat a recovery under the policy either in whole or in part, and prevent such stipulation from furnishing a legal defense to a recovery under the policy, or to a recovery of a portion of the sum of money specified therein. The provision that the “corporation shall be liable for the payment of such amount in full” is “subject to such legal defenses as it may have,” and the stipulation contained in this policy, under the evidence, furnishes such a legal defense. We are not aware of any rule of construction which would permit a holding that it was the intention of the Legislature in enacting this article to prohibit the parties to a policy contract from making and expressing in the policy an agreement that the insurer shall only be liable for a designated portion of the amount required to be stated on the failure of the insured to give such written notice, and must, therefore, conclude that this stipulation is valid and binding on defendant in error.

We cannot agree with the holding of the Courts of Civil Appeals in the cases of International Travelers’ Association v. Branum, 169 S. W. 389, and Francis v. International Travelers’ Association, 260 S. W. 938 (writ of error granted and cause now pending), on this question. When other articles composing chapter 5, title 71, of the Revised Civil Statutes of 1911 (chapter 6, title 78, of the Revised Civil Statutes of 1925), and under which the International Travelers’ Association was incorporated, are taken into consideration, we are not warranted in holding that the purpose of this article was to prevent limitations upon liability to an amount below the face value of the policy. Such purpose is not expressed, and, to imply it, we must resort to speculation and conjecture.

The judgment should be so reformed as to allow defendant in error recovery for the sum of $3,308.24 tendered by plaintiff in error, and, as reformed, affirmed, the judgment to bear no interest prior to the date of af-firmance.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversed, and judgment of the district court reformed and affirmed, as recommended by the Commission of Appeals. 
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