Border State Life Ins. Co. v. Monk, 3487.

• Decision Date: 18 March 1937
• Docket Number: No. 3487.,3487.
• Citation: 103 S.W.2d 825
• Parties: BORDER STATE LIFE INS. CO. v. MONK et al.
• Court: Texas Court of Appeals

Page 825

103 S.W.2d 825

BORDER STATE LIFE INS. CO. v. MONK et al.

No. 3487.

Court of Civil Appeals of Texas. El Paso.

March 18, 1937.

Rehearing Denied April 8, 1937.

Appeal from District Court, Houston County; Ben F. Dent, Judge.

Action by C. L. Monk in his own name and for the use and benefit of John Lovell, surviving husband of Irene C. Lovell, against the Border State Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Cofer & Cofer, of Austin, for appellant.

Aldrich & Crook, of Crockett, for appellees.

NEALON, Chief Justice.

Appellee C. L. Monk, hereinafter styled plaintiff, sued the appellant, Border State Life Insurance Company, hereinafter styled defendant, to recover the death indemnity provided for in a policy of insurance issued by defendant upon the life of Irene C. Lovell, who died April 12, 1935. Plaintiff alleged that he was the beneficiary named in said policy and that he had an insurable interest in decedent's life because he had extended credit to her and her husband to the extent of $525 for necessaries, consisting of money, groceries, and family supplies. The suit was brought in the name of plaintiff and for the use and benefit of John Lovell, surviving husband of decedent.

Defendant answered by general demurrer, special exceptions, general denial, and allegations that prior to insured's death the policy had lapsed and been forfeited, and that though notified of the forfeiture, the insured had never sought reinstatement. Defendant also pleaded that plaintiff C. L. Monk was in no way related to Irene C. Lovell, and had never had an insurable interest in her life.

Plaintiff Monk by supplemental petition rejoined that he regularly paid the assessments upon said policy and charged the same to decedent's account; that this practice was regularly pursued and defendant accepted his checks; that it was the custom of defendant to accept such checks for premiums just before and soon after the assessments were due, and sometimes as long as two or three days after the assessments became due, and never did defendant refuse to accept such a tardy payment until it rejected a check dated March 4, 1935, to pay an assessment due March 5, 1935; that it did receive said check March 5, 1935, or in any event not later than March 6, 1935.

Premiums were payable monthly, and it appeared from the evidence that a number of the payments had been made and accepted later than their due date, apparently without protest from defendant until March 4, 1935. Appellant's notices carried a warning that if remittances were not received on their due dates, members would stand suspended. Plaintiff, who made all payments on the policy, testified that he relied on this manner of dealing with him in making the payments for Mrs. Lovell. Mrs. Lovell left surviving her five children and her husband.

Two special interrogatories were propounded to the jury, each of which it answered affirmatively. They were:

"Do you find from a preponderance of the evidence that it had become a custom of the Border State Life Insurance Company to receive premiums on the policy in question after the premiums were due?"

"Do you find from a preponderance of the evidence that the plaintiff, Claude Monk relied on this custom when he sent a check to pay the premium due March 5, 1935?"

Upon the answers so returned the court entered judgment against appellant and in favor of C. L. Monk for himself and John Lovell for $1,000 and costs.

Opinion.

1. Appellant insists that the court erred in entering judgment in favor of appellee because, as appellant insists, while he was a creditor of the community estate, his claim was not a personal charge against the wife. Under the facts of this case it is immaterial as to whether she might have been charged personally. Mr. Monk's demand was a valid claim against the community estate of decedent and husband. It was so recognized by the husband when he authorized Monk to pay the premiums as they fell due. The claim arose out of credits extended for groceries, medicines, shoes, farm supplies, and money advanced for premiums paid defendant on said policy. The account for necessaries covered the critical period that intervened between the summer of 1929 and the autumn of 1931, as well as advances thereafter made to carry the insurance policy herein involved as well as a policy on the life of the husband. It seems that appellee did this with several customers, in each instance carrying the policy so long as the customer was in his debt.

When appellee brought suit, he did so for himself, as well as for the use and benefit of the surviving husband. He was not claiming adversely to the survivor, whose right it was to collect the community estate and apply it to the satisfaction of community debts, even to the exclusion of the heirs, whose rights would attach only to one-half of the excess remaining after the debts were paid. The manner in which the suit was brought was evidently agreeable to and in accord with the wishes of the husband, for he testified in behalf of plaintiff. The surviving husband is the one person to be consulted as to the disposition of the fund. The contract of insurance was made with the community. The cost of carrying it is a charge against the survivor. The beneficiary is recognizing his rights as he should. Moody v. Smoot, 78 Tex. 119, 14 S. W. 285; Carter et al. v. Conner, 60 Tex. 52; Stone v. Jackson, 109 Tex. 385, 210 S. W. 953.

Apt answer to appellant's challenge of the right of appellee to recover may be found in the language used by Judge Stayton in Pacific Mutual Life Ins. Co. v. Williams, 79 Tex. 633, 637, 15 S.W. 478, 480: "The question thus raised is not one of ultimate right to the money to be recovered, but of right of appellee to maintain this action; and it has been held in many cases, under policies like that involved in this case, that the person named by the assured and insurer in the policy as the person to whom the sum secured by the policy shall be paid, may maintain an action on the policy without reference to the interest of such person in the life of the assured. [Provident Life] Insurance Co. v. Baum, 29 Ind. [236] 240; [Guardian Mutual Life] Insurance Co. v. Hogan, 80 Ill. [35] 39 ; Campbell v. Insurance Co., 98 Mass. [381] 389; Fairchild v. Association, 51 Vt. [613] 625; Forbes v. Insurance Co., 15 Gray, [(Mass.) 249] 255 . In [Provident Life] Insurance Co. v. Baum it was said: `It is not for the insurance company after executing such a contract, and agreeing to the appointment so made, to question the right of such appointee to maintain the action. If there should be a controversy as to the distribution, among the heirs of the deceased, of the sum so contracted to be paid, it does not concern the insurers. The appellant contracted with the insured to...