Commonwealth Casualty & Insurance Co. v. Bales, 5807.

• Citation: 151 S.W.2d 844
• Decision Date: 01 May 1941
• Docket Number: No. 5807.,5807.
• Parties: COMMONWEALTH CASUALTY & INSURANCE CO. v. BALES.
• Court: Texas Court of Appeals

Page 844

151 S.W.2d 844

COMMONWEALTH CASUALTY & INSURANCE CO. v. BALES.

No. 5807.

Court of Civil Appeals of Texas. Texarkana.

May 1, 1941.

Rehearing Denied May 22, 1941.

Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.

Action by Lola Mae Bales against the Commonwealth Casualty & Insurance Company to recover on an accident insurance policy for insured's death. Judgment for plaintiff, and defendant appeals.

Modified, and affirmed as modified.

Goggans & Ritchie, William P. Goar, and John G. Whitaker, all of Dallas, for appellant.

Cunningham, Lipscomb & Cole, of Bonham, for appellee.

JOHNSON, Chief Justice.

This suit was filed by Mrs. Lola Mae Bales against Commonwealth Casualty and Insurance Company seeking to recover the principal sum of $1,000 and 12% penalty and $150 attorney's fee upon a policy of insurance issued to her husband, Walter B. Bales, and in which plaintiff was named as beneficiary, on account of the death of the insured resulting from injuries received in an automobile accident. The defendant's answer contains a plea in abatement, general demurrer, special exceptions, general and special denials, and special pleadings that defendant has at no time denied but admits liability and tenders into court the sum of $37.50 which it alleges is the full amount due under the terms of the policy. Defendant further specially pleaded that it was a "mutual assessment company", incorporated, and authorized to do business under the provisions of Chaper 245 of Acts of 1933, 43rd Legislature, Article 4859f, Vernon's Ann.Civil Statutes, and was not liable for statutory penalties and attorney's fees.

Trial of the cause to the court without a jury resulted in judgment for plaintiff for $1,000 payable in 25 monthly installments of $40 each, beginning March 18, 1940; and that plaintiff be denied any recovery for penalty or attorney's fee. The defendant appealed.

Appellant rests its prayer for reversal upon three propositions. The first proposition complains of the trial court's action in overruling defendant's general demurrer to plaintiff's petition. The petition fully alleges the facts affirmatively showing that the loss sustained was a risk insured against by the general terms of the policy which in part provides:

"This Policy Insures Against: (1) Loss or disability resulting directly, and exclusive of all other causes, from bodily injury sustained during the life of this policy solely through accidental means, said bodily injury hereinafter referred to as `such injury,' * * *

"Specific Total Losses

"(A) If such injury `through purely accidental means shall from date of accident result, directly, independently, and exclusively of all other causes and within ninety days from date of the accident, in any of the losses enumerated below, the Company will pay the sum set opposite such loss, which shall be in lieu of any other indemnity payable under this policy;

                  "For Loss Of
                   Life ..... The Principal Sum. ($1000)."
                

The petition does not expressly negative the following provisions of the contract: "The indemnity under this Policy, fatal or otherwise, for any injury or disease sustained directly or indirectly, solely or partly, as a result of, or that is contributed to, being in any degree under the influence of a narcotic, or an intoxicant, or while violating any law, or by war, or by any act of war, or suffered by the Insured while in military or naval service in time of war, or suicide or attempt thereat, while either sane or insane, or those sustained by the Insured while being in or upon, or in consequence of having been in or upon any vehicle or aerial navigation (except as provided in Section `D'), or those caused by bodily or mental infirmity, or by strains, sprains, or infection, or prostate gland trouble in any form, or cancer, or kidney trouble, or heart trouble, or rheumatism in any form, or tuberculosis, or paralysis, or high or low blood pressure, or influenza, or venereal disease, or diseases not common to both sexes, shall be payable at the rate of one-fourth of the amount specified in this Policy for non-confining sickness not to exceed three consecutive months; nor will any indemnity be allowed for any existing disability after lapse of Policy, anything to the contrary notwithstanding."

Appellant contends that plaintiff's petition is subject to general demurrer for failure to expressly negative the above-quoted provision of the policy. The decisions of our Supreme Court have settled the question in this State to the effect that where a policy contains a provision excepting from or taking out of the general coverage of the contract certain risks as not being insured against or covered by the policy, the burden is on the plaintiff to negative such exceptions, both in pleading and in proof. Travelers' Ins. Co. v. Harris, Tex.Com.App., 212 S.W. 933; Coyle v. Palatine Ins. Co., Tex.Com.App., 222 S.W. 973; Washington Fidelity National Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093; International Travelers Ass'n v. Marshall, 131 Tex. 258, 114 S.W.2d 851, 852. In the case last cited it is said: "In order to sustain a judgment based on such policy, plaintiff must negative, by allegation and proof, the exceptions which under the terms of the policy...