American Nat. Ins. Co. v. Points, 3129.

• Court: Texas Court of Appeals
• Writing for the Court: Pelphrey
• Citation: American Nat. Ins. Co. v. Points, 81 S.W.2d 762 (Tex. App. 1935)
• Decision Date: 18 April 1935
• Docket Number: No. 3129.,3129.
• Parties: AMERICAN NAT. INS. CO. v. POINTS.

81 S.W.2d 762

AMERICAN NAT. INS. CO. v. POINTS.

No. 3129.

Court of Civil Appeals of Texas. El Paso.

April 18, 1935.

Rehearing Denied May 2, 1935.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Action by William Clyde Points against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Brame & Brame, of Sherman, for appellant.

Webb & Webb, of Sherman (G. P. Webb, of Sherman, of counsel), for appellee.

W. B. Handley and C. J. Shaeffer, both of Dallas, amici curiæ.

PELPHREY, Chief Justice.

The statement appearing in appellant's brief is agreed to be correct and fair by appellee, and we shall adopt it for the purposes of this opinion.

"This suit was instituted in the 16th Judicial District Court of Grayson County, Texas, by the appellee, William Clyde Points, against the appellant, American National Insurance Company, on an insurance policy issued by appellant which insured the life of appellee for the sum of $2,000.00 payable on the death of appellee to appellee's wife as beneficiary and providing that in the event of the total permanent disability of the insured the insurer will waive the payment of premiums during the continuance of such disability and will pay to the insured the sum of $20.00 six months after receipt of due proof of such disability and a like sum monthly thereafter during the life of the insured and the continuance of his disability and providing that the insured shall at any time thereafter and from time to time but not oftener than once a year on demand furnish to the insurer due proof of the continuance of such disability and if such proof is not so furnished then no further premiums shall be waived and no further income shall be paid.

"Appellee alleged that on January 6th, 1933, his left arm was crushed in between the flanges of two locomotive drivers and that as a result thereof he has lost complete use of said member and the effect of his condition causes him pain in other portions of his body as well as in said arm to such an extent that he will not be able to work and thereby he has received the total permanent disability set out in said policy. That at the time of his injury, he had a life expectancy according to the American Experience Table of Mortality of 34.63 years, that the value of money is three per centum, that the present cash value of the policy for $2,000.00 figured on money valued at three per centum and the principal discounted at the rate of three per centum compounded annually is $1,270.00, that there are eight monthly installments of $20.00 each which have matured aggregating $160.00 and the unmatured installments payable monthly aggregate the sum of $9,120.00 and the present cash value thereof is $5,800.00, that on or about April 24, 1933, appellant denied liability under said policy and denied that appellee had such injury or injuries or disability as to entitle him to any monthly income under said policy and has failed and refused to pay appellee or to waive the premiums becoming due after such alleged disability, that thereby appellant has repudiated said contract and appellee has employed counsel to represent him and that $2,500.00 would be a reasonable fee for their services.

"Appellant replied by plea to the jurisdiction alleging therein that under appellee's petition, if the allegations were true, he would only be entitled to recover the sum of $160.00 for eight matured installments with a refund of $50.50 covering an unwaived premium making a total of the sum of $210.50; that the allegation that appellee is entitled to the sum of $20.00 per month during 33.92 years can form no basis for the present suit as the policy makes no provision for acceleration of payments nor for the waiver of premiums the due dates of which have not matured; that appellee's claim for recovery of the face of the policy, $2,000.00 less compound interest at three per cent. for 33.92 years is not supported by any provision of the policy, there being no provision for the acceleration in the payment thereof but said policy specifically providing for the payment of said $2,000.00 only on receipt of due proof of the death of the appellee which is not alleged to have occurred; and that the allegations are anticipatory and form no legal basis for a suit against the appellant.

"Appellant next urged by plea in abatement that appellee's petition alleges that the policy insured appellee on his life in the principal sum of $2,000.00 payable on his death to Beatrice Points, wife of the insured, as beneficiary named in said policy made a party to the suit, there is no allegation that said sum of $2,000.00 is due under the terms of the policy, and in truth and in fact no part thereof is due under the terms of said policy; that appellee alleges in his petition that he was injured on January 6, 1933, and the alleged disability following such injury was permanent and total, that said policy provides for the payment of $20.00 per month during the time of such permanent and total disability, said $20.00 payment to be made six months after receipt of due proof of such total permanent disability and thereafter a like payment monthly during the life of the insured and the continuance of the disability, that under the terms of such policy appellee only alleges the maturity of payments for eight months aggregating $160.00; that so much of appellee's cause of action, if any he has, which relates to the payment of monthly payments in excess of $160.00 are not due and form no basis for a suit; that there is no acceleration clause in the policy and the payment of such $20.00 monthly payments are contingent on his continued life and his total and permanent disability during such continued life; and appellant adopted and made a part of its plea in abatement the allegations in its plea to the jurisdiction.

"Subject to the action of the court on said pleas, appellant answered by general demurrer twelve special exceptions, a general denial, and by a special denial specially pleading the entire provisions of the policy with reference to waiver of premiums, life income to insured, and benefits for total permanent disability, alleged that appellant is informed, and believes, that appellee was injured on January 6, 1933, but specially denied that such injury has resulted in total permanent disability as that term is used in the policy of insurance, specially denied that appellee had furnished due proof of such total and permanent disability as is contemplated under the terms of the policy; specially denied that it is indebted to appellee in any amount under the terms of the policy and asserted that if it is indebted under the terms of the policy, such indebtedness does not exceed $210.50 which is far below district court jurisdiction and that all payments under the terms of the said policy are contingent, and specially denied that appellee is ever given the right to collect the principal amount of said policy, $2,000.00, or any part thereof but said sum is payable only to the beneficiary after the contingencies mentioned therein have occurred.

"After hearing evidence thereon, the Court overruled the plea to the jurisdiction and the plea in abatement to which action appellant duly excepted. The court also overruled the general demurrer and all twelve special exceptions to which in each instance the appellant excepted. The case was tried to a jury and the Court, after overruling appellant's request for peremptory instruction, appellant's motion for instructed verdict, refusing appellant's special charges Nos. 1, 2 and 3, and requested special issue No. 1 and overruling appellant's objections and exceptions to the court's charge, appellant's exceptions in each instance being noted, submitted to the jury seven special issues which with the answers returned thereto by the jury are as follows:

"1. Do you find from a preponderance of the testimony that the plaintiff suffered an injury on or about January 6th, 1933, in the course of his employment with the Frisco Railroad? Answer: Yes.

"2. Do you find from a preponderance of the testimony that the plaintiff suffered total and permanent disability by reason of the injuries, if any, he received on January 6th, 1933? Answer: Yes.

"3. Do you find from a preponderance of the testimony that demand was made or caused to be made by plaintiff on defendant herein more than sixty days before suit and after proofs, if any, were furnished the defendant, that the defendant waive the premiums on his life policy and that he be paid twenty dollars per month for total and permanent disability, if any he had? Answer: Yes.

"4. Do you find from a preponderance of the testimony that the defendant American National Insurance Company has failed and refused to pay William Clyde Points any money by reason of his disability, if any? Answer: Yes.

"5. Do you find from a preponderance of the testimony that the defendant American National Insurance Company has failed to waive premiums on life policy on William Clyde Points? Answer: Yes.

"6. What do you find from a preponderance of the testimony to be the present reasonable per centum to be allowed for money due in the future? Answer: Three per centum.

"7. What do you find from a preponderance of the testimony to be a reasonable attorney's fee, if any, for representation of plaintiff in this cause? Answer: $2,000.00."

Appellant filed a motion to set aside the verdict and findings of the jury, which was amended, and an alternative motion for new trial, which was amended, both of which were overruled and notice of appeal given; the court having previously entered judgment in favor of appellee for $9,214, with 6 per cent. interest from the date of judgment. Appellant duly excepted in each instance. This case is on appeal on supersedeas bond duly filed and approved. Within due time, appellant filed certified transcript and duly authenticated Q. and A. transcript...