Commercial Travelers Cas. Co. v. Dymke
| Decision Date | 13 May 1955 |
| Docket Number | No. 3159,3159 |
| Citation | 279 S.W.2d 405 |
| Parties | COMMERCIAL TRAVELERS CASUALTY COMPANY, Appellant, v. Ronald D. DYMKE, Appellee. |
| Court | Texas Court of Appeals |
J. T. Sample, Dallas, Webb, Sorrells, Schulz & Ford, Abilene, for appellant.
Archer & Overshiner, Abilene, for appellee.
Ronald D. Dymke sued Commercial Travelers Casualty Company on two insurance policies in which said company agreed to pay him $200 per month, for not more than 18 months, while he was wholly and continuously disabled as a result of bodily injury. Plaintiff alleged that on March 26, 1954, he suffered an injury which has wholly and continuously disabled him ever since and that such disability will continue for 18 months. Plaintiff alleged that on April 28, 1954, the company breached the contracts, denied all liability and cancelled the policies, without just cause; that it falsely claimed it had in its files conclusive evidence that Dymke's disability was caused by a back injury suffered prior to issuance of the policies. Plaintiff alleged the company completely repudiated its agreement without just cause, wherefore, plaintiff was entitled to recover all payments due or to become due for disability, by reason of defendant's anticipatory breach of its contracts. He alleged he would be wholly and continuously disabled for 18 months and sought recovery of $3,600.
Defendant answered that, by reason of Dymke's willful concealments and misrepresentations of a material nature, upon which it relied in issuing the policies, it was entitled to a judgment declaring the policies void.
The jury found (1) that on March 26, 1954, after the policies were issued, Dymke sustained an accidental injury to his back; (2) that wholly and continuously disabled him and (3) would continue to wholly disable him for 15 months; (4) that Mrs. Dymke falsely represented that her husband had never been treated for sickness, disease or accidental injury; (5) that said representation was not made with intent to deceive the company and (6) were not material to the risk; (7) that the company relied thereon and, (8) after the applications were made by Mrs. Dymke but before Dymke was injured on March 26th, plaintiff ratified and approved said applications and accepted the insurance policies sued on.
Judgment was rendered for Dymke against the company for $3,000 and it has appealed.
After careful consideration, we have concluded that the finding that, after the applications were made but before he was injured, Dymke ratified and approved the applications and accepted the policies, is sustained by the evidence.
Appellant's third point is that the court erred in refusing to permit its president to testify as to the underwriting policy of the company. This point must be overruled because it is not shown what he would have testified.
Appellant's fourth and fifth points are that the evidence is (4) insufficient to support a judgment for more than four months disability and (5) that the court erred in entering judgment for unaccrued monthly benefits. There was testimony that Dymke had earned about $350 between the time of his injury and the trial on July 27, 1954. There is evidence to the effect that Dymke performed labor by reason of necessity and it caused him to suffer pain. We think it was not conclusively shown that Dymke was not disabled within the meaning of the policies. Appellant's point that the court erred in rendering judgment for 'non accrued monthly benefits' has given us the most concern. The burden was on Dymke to not only allege, as he did, but also to prove that the company absolutely repudiated its obligation without just cause in order to recover damages for an entire breach of the contracts in one suit, that is, to recover the present value of all that he would have received if the contracts had been performed. Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 407. There was no jury finding relative thereto. However, after careful consideration of the record presented, we have concluded that an absolute repudiation of the contract, refusal of payment of the promised monthly installments...
To continue reading
Request your trial
-
Crouch v. Crouch
...Accident Insurance Co. v. Sanders,129 Tex. 344, 348, 102 S.W.2d 405, 407-08 (Tex.Comm'n App.1937, opinion adopted); Commercial Travelers Casualty Co. v. Dymke, 279 S.W.2d 405 (Tex.Civ.App. Eastland 1955, no While we agree with appellant that repudiation does not change the terms of the cont......
-
Lumbermens Mutual Casualty Company v. Klotz
...199 S.W.2d 819; American National Ins. Co. v. Fox, Tex.Civ.App., 184 S.W.2d 937 (writ ref., w.m.); Commercial Travelers Casualty Co. v. Dymke, Tex.Civ. App., 279 S.W.2d 405; Williams v. Mutual Benefit, Health & Accident Association, (Tex.) 5 Cir., 100 F.2d 264; Needham v. American National ......
-
Continental Cas. Co. v. Boerger
...478, writ ref. n. r. e.; Williams v. Mutual Benefit Health & Accident Ass'n, 5 Cir., 100 F.2d 246; see Commercial Travelers Casualty Co. v. Dymke, Tex.Civ.App., 279 S.W.2d 405, 408. It is unnecessary, under this holding, to pass on appellee's contention that the insurer also repudiated the ......
-
McCann v. John Hancock Mut. Life Ins. Co.
...which sets forth a similar view, but in other jurisdictions such opinion is not infrequent (see e. g. Commercial Travelers Casualty Co. v. Dymke, Tex.Civ.App., 279 S.W.2d 405 (Texas); Metropolitan Life Insurance Co. v. Schneider, 99 Ind.App. 570, 193 N.E. 690; Travelers 'Insurance Co. v. Tu......