American Nat. Ins. Co. v. Callahan, 1838-6366.

• Decision Date: 24 April 1935
• Docket Number: No. 1838-6366.,1838-6366.
• Citation: 81 S.W.2d 504
• Parties: AMERICAN NAT. INS. CO. v. CALLAHAN.
• Court: Texas Supreme Court

81 S.W.2d 504

AMERICAN NAT. INS. CO. v. CALLAHAN.

No. 1838-6366.

Commission of Appeals of Texas, Section A.

April 24, 1935.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Percival K. Callahan against the American National Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [51 S.W.(2d) 1083], and defendant brings error.

Affirmed.

W. B. Handley and C. J. Shaeffer, both of Dallas, for plaintiff in error.

White & Yarborough, of Dallas, for defendant in error.

HARVEY, Commissioner.

This is a suit on an insurance policy issued in the year 1920, by the plaintiff in error, on the life of Joseph M. Callahan. The policy provided for premium payments on the second day of February and August of each year. The insured made all premium payments as they fell due, up to and including that of August 2, 1929. The policy provides:

"After one full year's premium shall have been paid and before default in the payment of any subsequent premium hereon, if the insured, prior to attaining the age of sixty years at nearest birthday, and while this policy is in full force, shall furnish due proof to the Company at its Home Office that he has become totally and permanently disabled by bodily injury or disease, so that he is, and presumably will be permanently, continuously and wholly prevented thereby for life from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, the Company will grant the following benefits:

"1. Waiver of Premium: The Company will, during the continuance of such disability, waive payment of each premium as it thereafter becomes due, commencing with the first premium due after receipt of said due proof of disability.

"2. Life Income to Insured: Six months after the receipt of said due proof of disability the Company will pay to the insured if then living and such disability still continue, the sum of Twenty Dollars, and a like sum monthly thereafter during the life of the insured and the continuance of his disability."

The insured, who had not reached the age of sixty years, died March 6, 1930, without having paid the premium installment that fell due February 2, 1930. The case was tried before a jury on special issues, resulting in a judgment against the company for the amount of the policy. The judgment has been affirmed by the Court of Civil Appeals. 51 S. W.(2d) 1083.

Liability of the company under the policy depends on whether or not, at the time the insured died, the policy had lapsed on account of the nonpayment of the premium...