Business Men's Assur. Co. of America v. Bradley

• Court: Texas Court of Appeals
• Writing for the Court: Baugh
• Citation: Business Men's Assur. Co. of America v. Bradley, 275 S.W. 622 (Tex. App. 1925)
• Decision Date: 24 June 1925
• Docket Number: (No. 6869.)
• Parties: BUSINESS MEN'S ASSUR. CO. OF AMERICA v. BRADLEY.<SMALL><SUP>*</SUP></SMALL>

275 S.W. 622

BUSINESS MEN'S ASSUR. CO. OF AMERICA v. BRADLEY.^*

(No. 6869.)

Court of Civil Appeals of Texas. Austin.

June 24, 1925.

Rehearing Denied October 7, 1925.

Appeal from Coleman County Court; S. J. Pieratt, Judge.

Action by Carl L. Bradley against the Business Men's Assurance Company of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Snodgrass, Dibrell & Snodgrass, of Coleman, and Solon T. Gilmore, of Kansas City, Mo., for appellant.

H. L. Livingston and Baker & Weatherred, all of Coleman, for appellee.

BAUGH, J.

Appellee sued the appellant for a balance of $500 claimed to be due him under an accident policy issued him by appellant, for 12 per cent. penalty, and for attorney's fees. The case was tried to a jury upon special issues, and judgment obtained against appellant for $660, from which this appeal is prosecuted. The policy in question provided in article I thereof, amongst other things, for payment of $1,250 for the loss of one eye. While the policy was in force, appellee, by an accident occurring while he was engaged in recreation, lost one of his eyes. The claim adjuster for the appellant, after proofs of loss were made, and some 5 months after the accident, called upon appellee, told him that due to his change, after the issuance of the policy, to a more hazardous occupation than that engaged in by him at the time he made his application, the amount he was entitled to recover thereunder was reduced from $1,250 to $750, and issued him a draft for that amount, which appellee accepted and cashed. Other pertinent facts will appear in the discussion of the issues raised.

Appellant sets out in its brief 52 assignments of error, on which it bases 19 propositions. We shall not undertake to discuss these in detail, however, as, under the views we take of the case, they are practically all disposed of under two general issues. The first of these is, whether under the terms of the policy itself and the undisputed facts of the case, the appellee had, after his injury, a liquidated demand against the assurance company for the $1,250 named in the policy for the loss of an eye; and, second, whether appellee was barred from recovery by the terms and conditions imposed in the draft issued him for $750 and his indorsement thereof.

In the original application on which the policy was issued and in the policy, the insured's occupation was designated as "manager lumber yard." The yard seems to have been a small yard and operated by two men, who appear to have composed its entire working force. After the issuance of the policy, appellee, Bradley, was replaced as "manager" of the yard but continued his work there. It is because of this alleged "change of occupation" to one classified by the company as more hazardous that the adjuster sought to reduce the company's liability from $1,250 to $750. This contention was based upon the provisions of section 1, art. X of the policy, which reads in part as follows:

"This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company's classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate, but within the limit so fixed by the company for such more hazardous occupation."

It appears, however, that appellee had let his policy lapse for nonpayment of premiums but that he had, at the instance of a general agent of appellant company, paid up his delinquent premium and been reinstated, that he had after such lapse, and after he had been replaced as "manager" of the lumber yard, and at the time he paid up his past-due premiums, told said general agent of his changed status, and that such agent, with knowledge of whatever change there was in the character of his employment, had accepted his premiums and reinstated him under his original classification. It also appears that the alleged "change of occupation" was in name only, and that the risks and hazards of his employment were the same after his reinstatement as they were when he was first insured. His own testimony, which was not controverted, as to his duties after he was replaced as "manager" of the yard, was as follows:

"After Mr. Manning came here, I performed in fact the same duties as before, except the supervision. I didn't have the responsibility of management, to take the cussings over the bad trades we made, and things like that. I loaded wagons, collected, and worked some on the books. Two men were working with the Burton Lingo Company at that time, Mr. Manning and myself. I did the same work then that I had been doing before."

No contention is made by the company that his original classification was wrong, nor that he would not have been entitled to recover the full $1,250 had the injury occurred thereunder. Under the undisputed testimony, however, it appears that...