American National Ins. Co. v. Briggs

• Decision Date: 19 April 1934
• Docket Number: No. 2536.,2536.
• Citation: 70 S.W.2d 491
• Parties: AMERICAN NATIONAL INS. CO. v. BRIGGS.
• Court: Texas Court of Appeals

70 S.W.2d 491

AMERICAN NATIONAL INS. CO. v. BRIGGS.

No. 2536.

Court of Civil Appeals of Texas. Beaumont.

April 19, 1934.

Rehearing Denied April 25, 1934.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by Arthur Briggs against the American National Insurance Company and another. From a judgment for plaintiff against defendant named, defendant named appeals.

Reversed and remanded.

Barnes & Barnes, of Beaumont, for appellant.

A. L. Shaw and Jones & Linscome, all of Beaumont, for appellee.

WALKER, Chief Justice.

Appellee, Arthur Briggs, was born in 1890. While engaged in unloading sawlogs for his employer, Peavy-Moore Lumber Company, on the 24th day of March, 1930, he was struck by the logs and knocked a distance of about 15 feet, from which he suffered serious bodily injuries. On the 17th day of February, 1928, appellant, American National Insurance Company, issued to appellee its health and accident policy which was in full force and effect at the time he was injured. By this policy, for personal injuries, appellant was obligated to pay appellee: "In consideration of the statements in the application herefor, copy of which is endorsed hereon, and which is made a material part hereof, and the payment in advance of a Premium of $1.95 and a Policy fee of Two Dollars. Does hereby insure Arthur Briggs. Subject to all the conditions herein contained and endorsed hereon, from 12:00 o'clock noon, standard time, of the day this contract is dated, until 12:00 o'clock noon, standard time, of the 15th day of March 1928, and for such further periods, stated in the renewal receipts as the payment of the premium specified in said application will maintain this policy and insurance in force, against death or disability resulting directly and exclusively of all other causes, from bodily injury sustained solely through external violent and accidental means, said bodily injury being hereinafter referred to as such injury," and against death and disability from any bodily disease or illness as follows:

"* * * (C) At the rate of Thirty Dollars per month, for the period during which such injury alone shall, from date of accident, wholly and continuously disable and prevent the Insured from performing any and every duty pertaining to any business or occupation, provided that during such period of total disability the Insured shall have received attention at least once in every seven (7) days from a legally qualified surgeon. — $30.00.

"(D) Or, if such injury alone shall wholly and continuously, from date of accident, disable and prevent the Insured from performing one or more important daily duties pertaining to any occupation, or in event of like disability, immediately following total loss of time, the Company will pay the Insured for the period of such partial disability, not exceeding six consecutive months at one-half the rate specified in paragraph (c), provided that during such period of partial disability the Insured shall have received attention at least once in every seven (7) days from a legally qualified surgeon. — $15.00."

This suit was filed by appellee on this policy of insurance against appellant and Washington National Insurance Company of Chicago, Ill., on allegations that Washington National Insurance Company had assumed the insurer's liability; that appellee had suffered permanent total disability as the result of the injuries above referred to; that he had given due notice to both defendants of his claim and demanded payment; that payment was refused by both defendants; that as a result of the refusal he had the right to, and therefore did, mature all payments to be made in the future under the terms of the policy; that he had a reasonable life expectancy of twenty years, making defendants due him the sum of $30 per month for 240 months; that because of their refusal he was entitled to, in addition to the principal sum of the policy, 12 per cent. damages and reasonable attorney's fees. The jury found that on the 24th day of March, 1930, appellee sustained "accidental personal injuries" resulting in his total and permanent disability by which he "will be wholly and continuously disabled and prevented from performing any and every duty pertaining to any business or occupation"; such disability was not the result of syphilis; appellant refused to pay appellee the monthly installments at the rate of $30 per month, as provided by the terms of the policy; appellee's life expectancy was 6 years.

On the 9th day of March, 1933, on the verdict of the jury, appellee was awarded judgment against appellant for $600, as the amount of matured installments, and that he should also "recover the further sum of $2,160.00 as anticipatory damages by reason of the repudiation and breach of said contract of insurance, with the sum of $331.20 as penalty for said breach, and the sum of $300.00 as attorneys' fees, amounting in the aggregate sum of $3391.20." No proof was offered by appellee to sustain his allegations against Washington National Insurance Company, and, as no issue was submitted to the jury against that defendant, judgment was entered in its favor, against which there is no complaint on this appeal.

The court erred in refusing to strike from appellee's petition his claim for "anticipatory" damages; that is, for the installments not matured on the date of trial. His cause of action in this suit was limited by the terms of the policy to the monthly payments of $30 which had matured at the date of the judgment. Where the conditions of an insurance policy are that its benefits are to be paid in monthly installments or on specified dates, maturing after the occurrence of the event insured against, the refusal to pay, that is, the denial of liability under the policy by the insurer, does not accelerate the maturity of future installments. A most satisfactory discussion of this proposition is found in Howard v. Benefit Ass'n, 239 Ky. 465, 39 S.W. (2d) 657, 81 A. L. R. 375, by the Court of Appeals of Kentucky. On identical facts, discussing this proposition, in New York Life Insurance Co. v. English, 96 Tex. 268, 72 S. W. 58, our Supreme Court said: "A contract for the payment of money will not support an action until it becomes due and payable according to its terms. * * * We have not been able to find any precedent, nor any principle of law, which would permit suit upon the installments of this policy which had not matured because there had...