
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. BRYANT.
    (No. 3039.)
    (Supreme Court of Texas.
    May 3, 1922.)
    1. Appeal and error <&wkey;272(2)— Giving of peremptory charge considered, though no exception was reserved before charge was given.
    Assignments complaining of the giving of peremptory charge will he considered on appeal though no exception thereto was reserved before the charge was given.
    2. Insurance t&wkey;524 — Accident policy held to entitle insured to indemnity provided for total disability if substantially unable in exercise of ordinary care to perform every material duty pertaining to his occupation.
    Accident policy, obligating insured to pay specified amount weekly for accident which shall “wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation,” and providing for payment of a lesser amount for not to exceed specified period if injury prevented insured “from performing one or more important daily duties pertaining to his occupation” held to entitle insured to indemnity for total disability if the injuries render him substantially unable in the exercise of ordinary care to perform every material duty pertaining to his occupation.
    Error to Court of Civil Appeals of Fifth ■Supreme Judicial District.
    Suit by C. M. Bryant against the Commonwealth Bonding & Casualty Insurance Company. Judgment for plaintiff affirmed by the Court of Civil Appeals (185 S. W. 979), and. defendant, brings error.
    Judgments of District Court and Court'of Civil Appeals reversed, and cause remanded.
    Crosby, Hamilton & Harrell, of Greenville, for plaintiff in error.
    L. L. Bowman, of Greenville, F. M. Kemp, of Vernon, and Yates, Sherrill & Starnes, of Greenville, for defendant in error.
   GREENWOOD, J.

Defendant in error sued plaintiff in error to recover $2,600 on an accident policy. The policy obligated plaintiff in error to pay a weekly indemnity, aggregating the amount sued for, if defendant in error, who was a railroad conductor, sustained bodily injuries, through external, violeht, and accidental means, which should immediately, continuously, and “wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation.” The policy obligated plaintiff in error to pay one-half said weekly indemnity for not exceeding 26 weeks “if such injury should not wholly disable the insured, as above, but shall immediately (or immediately following total disability) and continuously disable and prevent him from performing one or more important daily duties pertaining to his occupation.”

The trial court directed a verdict for defendant in error for the full amount sued for. The first and second errors assigned by plaintiff in error in the Court of Civil Appeals complained of this peremptory charge. The Court of Civil Appeals refused to consider the assignments on the ground that it was not affirmatively shown that plaintiff in error’s objections to the peremptory charge were presented before the charge was read to the jury. The writ of error was granted because of the conflict between this decision and other decisions of the Courts of Civil Appeals to the effect that assignments on the giving of peremptory charges were entitled to consideration in the absence of objection thereto in the trial court.

While the writ of error has been pending, the rule has been settled by the decisions of this court that a party is entitled to have a judgment against him reversed, where it was based on a verdict following an unauthorized peremptory charge, though no exception thereto was reserved before the charge was given. Walker v. Haley, 110 Tex. 50, 214 S. W. 295; Decker v. Kirlicks, 110 Tex. 93, 216 S. W. 385.

The Court of Civil Appeals considered and overruled an assignment complaining of the refusal of a charge asked by plaintiff in error to the effect that defendant in error was not entitled to recover the weekly indemnity allowed by the policy for total disability, being of the opinion that reasonable minds might, from the evidence, reach different conclusions as to whether the disability of defendant in error was such as to entitle him to recover the larger or the smaller weekly indemnity. We agree that the evidence was not of such a character as to warrant either the peremptory charge against plaintiff in error, the insurer, which was given, or the peremptory charge against defendant in error, the insured, which was refused.

The court will not give such a literal interpretation to the language of this contract, wherein the larger weekly indemnity is promised, as to practically relieve the insurer of all obligation thereunder. Such would be the effect of a decision discharging plaintiff in error from all liability if defendant in error, after his injury, could clo anything required of him as a railroad conductor. Hefner v. Fidelity & Casualty Co., 110 Tex. 605-607, 222 S. W. 966. The language of the policy is fairly and justly susceptible of the interpretation, which, we think, should be given to it, that the larger indemnity was promised if the injuries rendered the insured substantially unable, in the exercise of ordinary ear’e, to perform every material duty pertaining to his occupation. Fidelity & Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326; Fidelity & Casualty Co. v. Joiner (Tex. Civ. App.) 178 S. W. 808 (W. of E. ref.); North American Accident Ins. Co. v. Miller (Tex. Civ. App.) 190 S. W. 755 (W. of E. ref.); 14 R. C. L. 1316; 5 Joyce on Insurance (2d Ed.) § 3032 (c); Foglesong v. Modern Brotherhood of America, 121 Mo. App. 548, 97 S. W. 240; Lobdill v. Laboring Men's Mutual, Aid Ass’n, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542. Who can doubt that the insured actually believed that he had at least the stated degree of indemnity, under the policy, or that the insurer actually intended him to so believe? We are certain that any construction of the language of the policy, more favorable to the insurer, would not accomplish, but would defeat, the real intent and purpose of the contracting parties.

The other questions presented by the petition for writ of error were correctly disposed of by the opinion of the Court of Civil Appeals.

For the error in peremptorily directing a verdict for defendant in error, the judgments of the district court and of the Court of Civil Appeals are reversed, and the cause is remanded to the district court for a new trial. 
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