American Nat. Ins. Co. v. Hicks

• Decision Date: 04 February 1931
• Docket Number: No. 1205-5563.,1205-5563.
• Citation: 35 S.W.2d 128
• Parties: AMERICAN NAT. INS. CO. v. HICKS.
• Court: Texas Supreme Court

35 S.W.2d 128

AMERICAN NAT. INS. CO. v. HICKS.

No. 1205-5563.

Commission of Appeals of Texas, Section B.

February 4, 1931.

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

Action by Hattie Hicks against the American National Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [19 S.W.(2d) 359], and defendant brings error.

Affirmed.

Frank S. Anderson, of Galveston, and Kennerly, Williams, Lee, Hill & Sears and W. H. Blades, all of Houston, for plaintiff in error.

George E. Holland, of Beaumont, for defendant in error.

SHORT, P. J.

The defendant in error, as the beneficiary, named in a policy issued by the plaintiff in error to her husband, Archie Hicks, for $1,000, dated September 2, 1920, recovered a judgment against the plaintiff in error for $1,370, with 6 per cent. interest from the date of the judgment rendered in the district court of Orange county, upon a trial by the judge, without the intervention of a jury. Upon appeal to the Court of Civil Appeals at Beaumont, this judgment was affirmed. 19 S.W.(2d) 359.

The suit was instituted August 18, 1928, substantially eight years after the issuance of the policy of insurance to Archie Hicks. By the terms of the policy, the plaintiff in error agreed to pay to the defendant in error, the wife of the insured, immediately upon the receipt of due proof of the death of Archie Hicks, the sum of $1,000, provided the annual premiums on the policy were paid within thirty days after each became due. However, the first annual premium was paid when the policy was issued, which had the effect to keep the policy in force until twelve months thereafter.

Among other allegations, the petition of the defendant in error contained the following:

"That on July 6, 1921, Archie Hicks disappeared from his home and his whereabouts have not been known to this plaintiff or to any of his friends or relatives since that time, and that his disappearance was under conditions and circumstances indicating his death at that time, and since that time the said Archie Hicks has never been heard from by this plaintiff, or by any other person, and that he has been absent from his home and not heard from for a period of more than seven (7) years.

"That at the time of the disappearance of the said Archie Hicks he was residing with his family, consisting of this plaintiff and one child, a boy about nine years of age, at Orange, in Orange County, Texas, and he had been residing with his family at said place for a long period of time prior to his said disappearance.

"That soon after the disappearance of the said Archie Hicks, under circumstances indicating his death, this plaintiff made known all the facts to the defendant company, and furnished them with affidavits of his disappearance in an effort to furnish proofs required by the defendant under the terms of said policies of the death of the said Archie Hicks, but the defendant ignored said notices and proofs and claimed the same not made in full requirement of the terms of said policies, and that his death was not thereby properly shown entitling them to make payment of said policies.

"That after the disappearance and absence of the said Archie Hicks for a period of seven (7) years under the circumstances, this plaintiff again applied to the defendant company for blanks upon which to make proper proof of said facts and proof of his death, and the defendant company waived the making of said proofs and expressly denied in all respects any liability to this plaintiff under said insurance policies, making the further proof of death immaterial and unnecessary."

The answer of the plaintiff in error contained a general demurrer, a general denial, a special denial that Archie Hicks is dead, alleging him to be alive, and further special denial that the premiums due on said policy had been paid, in accordance with its terms, alleging that the policy had been lapsed and forfeited for nonpayment of premiums; and further that, if defendant in error ever had any cause of action, the same had accrued more than four years prior to the filing of the suit; and further specially denying that defendant in error had made the proper proof of death required by the policy and in the manner and time required; and further that the plaintiff in error's cause of action, if any, accrued on July 6, 1920, or immediately thereafter; and in this connection alleged that on March 21, 1923, the defendant in error filed a suit against the plaintiff in error, involving the same subject-matter which was, on April 26, 1926, dismissed for failure to comply with the court's order to file a cost bond or affidavit in lieu thereof, in which suit so brought the defendant in error had alleged that Archie Hicks was accidentally killed on July 6, 1921, whereby defendant in error was estopped to deny that her cause of action accrued on July 6, 1921, or immediately thereafter; and further alleged that on October 5, 1922, defendant in error had filed a suit against the Jefferson Standard Life Insurance Company involving a policy on the life of Archie Hicks, and in said suit had alleged that Archie Hicks met with accidental death on July 6, 1921, which suit was tried about April, 1923, and resulted in a finding by the trial court that Archie Hicks died on July 6, 1921, which suit was appealed to the Court of Civil Appeals, which court did not disturb this finding of fact by the trial court, and that, upon application for writ of error to the Court of Civil Appeals, the same was dismissed, specially alleging that defendants in error contended in the suit last mentioned that said finding of the trial court was correct, by reason of which facts the plaintiff in error contended that the defendant in error's cause of action is barred by the statute of limitation of four years.

The trial judge filed findings of fact and conclusions of law, in which findings of fact he makes the statement that Archie Hicks died on the 6th day of July, 1921, making other findings of fact to the effect that all premium charges due by Archie Hicks on said policy of insurance, up to and including July 6, 1921, had been paid, and that the beneficiary had, within due time, given proper notice of the death of Archie Hicks, and furnished proof of his death to the plaintiff in error, and made demand on it for payment of said policy, which demand was refused. These findings of fact were adopted by the Court of Civil Appeals, in its opinion, among other facts, in addition to those found by the trial judge. The Court of Civil Appeals says: "The undisputed evidence shows that Archie Hicks, * * * on July 6, 1921, was living with his wife and one child in the city of Orange, Tex. He was about 38 years old, and had been married to appellee some nine years. The family relations were happy. * * * On that date he left his home ostensibly to go to see another party in town. He never returned, and has never been heard from. * * * He had no known enemies." The record also discloses that the defendant in error, immediately after the disappearance of her husband, instituted a search for him, and exhausted all reasonable efforts to find him, or hear of him, in vain.

The Supreme Court granted the application for the writ of error on the first assignment in the application, which questioned the correctness of the conclusion reached by the Court of Civil Appeals that the defendant in error's cause of action was not barred by the statute of limitation of four years when she instituted this suit. The plaintiff in error submits three propositions under this assignment, all of which are of the same import, and are to the effect that in a suit on a life insurance policy, where the insured died on the date of his disappearance, and the policy was payable immediately upon due proof of death, and the beneficiary submitted proofs of death and made demand for payment immediately after the death and disappearance, her cause of action accrued immediately after proof of death was submitted and her demand for payment had been refused.

Article 5541, R. S. 1925, in so far as it affects the question involved in this case, provides that: "Any person absenting himself for seven years successively shall be presumed to be dead, unless proof be made that he was alive within that time." Under the findings of fact by the Court of Civil Appeals, the death of Archie Hicks was established by the defendant in error in this suit, since there was no proof made that he was alive within seven years after July 6, 1921. The defendant in error also proved, without contradiction, that the twelve months after September 2, 1920, the policy introduced in evidence was in full force, by reason of the fact that Archie Hicks had paid said premium on the date when the policy was issued to him. The Court of Civil Appeals also found, and this finding is not challenged, that the defendant in error had furnished to the plaintiff in error, within due time, all the proofs she had that Archie Hicks was dead, which the plaintiff in error received, considered, and determined the same to be insufficient to prove...