Bank Sav. Life Ins. Co. v. Milan, 9197.

• Decision Date: 06 December 1933
• Docket Number: No. 9197.,9197.
• Citation: 70 S.W.2d 294
• Parties: BANK SAV. LIFE INS. CO. v. MILAN.
• Court: Texas Court of Appeals

70 S.W.2d 294

BANK SAV. LIFE INS. CO. v. MILAN.

No. 9197.

Court of Civil Appeals of Texas. San Antonio.

December 6, 1933.

Rehearing Granted in Part and Overruled in Part January 24, 1934.

Rehearing Granted March 7, 1934.

Rehearing Denied April 11, 1934.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Action by William C. Milan against the Bank Savings Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed, and judgment rendered for defendant.

Seabury, George & Taylor, of Brownsville, and Harry W. Frazee, of Lawrence, Kan., for appellant.

Adams & Glass, of Harlingen, for appellee.

MURRAY, Justice.

Appellee, William C. Milan, instituted this suit against the Bank Savings Life Insurance Company, of Topeka, Kan., appellant, to recover disability benefit in the sum of $100 per month, under a policy issued by the appellant to appellee, on January 5, 1928. A trial before the judge, without a jury, resulted in a judgment for Milan, and the insurance company has perfected this appeal.

There was no controversy in the trial court as to the issuance of the insurance policy, nor as to its provisions. The policy contained, among others, the following provisions:

"Waiver of Premium and Monthly Income Disability Benefits. The Company will grant the Disability Benefits stipulated below upon receipt at its Home Office, during the lifetime of the Insured and before default in the payment of any premiums, of due proof that the Insured, prior to the anniversary of the date hereof nearest the sixtieth anniversary of his birth, has become wholly disabled by bodily injury or disease from causes originating after this policy shall have gone into effect, so that he is and presumably will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit or following any gainful occupation, and that such disability has existed continuously for not less than ninety days prior to the furnishing of such proof; Provided, that such disability shall not result directly or indirectly, or wholly or partially, from riding or being in or upon or using any aerial or submarine device or conveyance; nor from engagement or participation in any branch of military or naval service in time of war. The total and irrevocable loss of the entire sight of both eyes, the severance of both entire hands or both entire feet, or similar loss of one hand and one foot shall be considered as total and permanent disability within the meaning of this provision. In connection with such proof, the Company shall have the right and opportunity to examine the person of the Insured.

"Waiver of Premiums. The Company will waive the payment of any premiums becoming due after approval of such proof. Any premium falling due prior to receipt of said proof is payable in accordance with the terms of the policy, but if due after receipt of said proof, will be refunded.

"Monthly Income to Insured. In addition to the above benefits, the Company will pay to the Insured the sum of $100.00 on the first day of each month during the continuance of the said total disability. The first monthly payment shall accrue on the first day of the calendar month following the date of receipt, as hereinbefore provided, of such due proof. If there be any indebtedness on the policy, the interest thereon shall be deducted from the monthly payments.

"Any monthly payments accruing before the Company approves the proof of disability shall be paid immediately upon approval of such proof with interest at 5% per annum from date of accrual."

Appellee pleaded in his petition the above provisions and his compliance with same. Appellant's answer consists of a general demurrer and a general denial.

In compliance with the provisions of his policy, appellee executed a sworn statement on January 29, 1932, claiming total disability, and in giving full details of the cause of his disability stated that it was caused by exposure during the World War, resulting in lung trouble. If this be true it is apparent that his disability arose from causes which did not originate after his policy was issued. There was considerable correspondence between the parties. On March 3, 1932, appellant wrote to Lennox & Lennox, lawyers representing appellee at that time, and made it very clear that one of the reasons appellant was denying liability was that appellee's sworn statement disclosed the fact that his disability arose from causes which existed prior to the issuance of his policy.

Appellee never at any time withdrew, corrected, contradicted, or explained this statement before the trial of his cause. It is not contended by appellee that the provision of his policy which required him to furnish this statement showing that his disability was the result of causes originating after the issuance of the policy was invalid or void from any reason whatsoever.

Appellee does make the contention that if the proof furnished by him was defective it was the duty of the insurance company to notify him of such defect and thus give him an opportunity to...