Continental Casualty Co. v. Jennings

• Citation: 99 S.W. 423
• Parties: CONTINENTAL CASUALTY CO. v. JENNINGS et al.
• Decision Date: 12 January 1907
• Court: Court of Appeals of Texas

99 S.W. 423

CONTINENTAL CASUALTY CO. v. JENNINGS et al.

Court of Civil Appeals of Texas.

January 12, 1907.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by Lillie Jennings and another against the Continental Casualty Company, other parties intervening. From an adverse judgment, defendant appeals. Affirmed.

This suit was brought by Lillie Jennings against the Continental Casualty Company to recover on an accident policy insuring John E. Jennings, her deceased husband, against accident. Lillie Jennings subsequently married J. M. Brown, who joins her herein. In her petition she sets out that on July 14, 1904, John E. Jennings was a line repairer in the employment of the Cane Belt Railroad Company, and on said day upon his written application, and in consideration of the payment of premiums, and of certain warranties, covenants and agreements contained in said application, and in the paymaster's order accompanying the same, said company issued its policy of insurance, conditioned to pay Lillie Jennings the sum of $2,000 in the event said John E. Jennings should receive personal bodily injuries that resulted in death within 90 days thereafter; that on October 23, 1904, said John E. Jennings, while gathering pecans, fell from a tree to the ground, receiving injuries from which he died on November 4, 1904, of which injuries and death the company was duly notified according to the terms of said policy. J. C. and M. E. Jennings intervened, claiming an assignment of the policy to them. J. C. Clark intervenes, claiming an assignment to him of so much of the policy as necessary to satisfy a certain note made by plaintiff for $300 to him. Defendant answered by general and special demurrers, general denial that said policy had been forfeited by the failure to pay premiums, and that said accident was caused from the intentional act of the deceased, and said recovery should be scaled on that account to the sum of $250, or that it resulted from the voluntary exposure to unnecessary danger, for which the recovery should be scaled to one-fourth of the amount, $500, or that the risk was obvious, for which the recovery should be scaled to $500. The case was tried by the court without a jury, and judgment rendered for the plaintiffs and interveners for $2,104.90, which was apportioned between the parties as their interest appeared, and of which they do not complain. Defendant alone prosecutes this appeal.

The trial court filed its conclusions of fact and law. The conclusions of fact are found to be correct by this court, and are as follows: "That on July 14, 1904, the defendant, Continental Casualty Company, upon the written application of John E. Jennings, issued to said Jennings accident insurance policy No. 801,304, whereby, in consideration of the warranties and agreements contained in said application and the payment of the premiums therein provided, it insured the life of the said John E. Jennings, by occupation a line repairer, in the principal sum of $2,000, with weekly indemnity of $10, subject to certain conditions in said policy specified, and so far as applicable to this controversy hereinafter set out, and thereby promised to pay to the insured or to his beneficiary, Lillie Jennings (now Lillie Brown), his wife, indemnity as therein scheduled, in the event that said insured, while said policy was in force, should receive personal bodily injury through external, violent, and purely accidental means, which caused at once total and continuous inability to engage in any labor or occupation or for loss of life, by such accidental means, the full sum of said policy was to be paid to the beneficiary, Lillie Jennings, now Lillie Brown. (2) Said policy contained, among others, the following provisions: Where the accidental injury results from the intentional act of the insured, or of some other person, while the insured is not engaged in his occupation, then the company shall only be held liable for the payment of one-eighth of what would otherwise be payable under said policy. Also, that where the accidental injury results from the voluntary exposure of the insured to unnecessary danger, or obvious risk of injury, then the company shall be liable for only one-fourth of what would otherwise be payable under said policy. (3) By the terms of said application the insured was to pay the sum of $30.00 in premiums, and gave therefor, which was accepted by the defendant company, a paymaster's order on the Cane Belt Railroad Company, for whom he was then working, which stipulated that said premium was to be paid in four installments of $7.50 each, payable as follows: $7.50 from the insured's wages for the month of August, 1904; $7.50 from wages for the month of September, 1904; $7.50 from wages for October, 1904; $7.50 from wages of November, 1904. The amount to be paid from the wages of each particular month was to be paid some time during the next succeeding month, according to the custom of the railroad company for which Jennings was working, the Cane Belt Railroad Company. Said policy contained the further stipulation that the paymaster was to be the agent of the insured, and that a failure to pay the premiums as per agreement should operate to forfeit all rights of the insured under the terms of the policy. (4) At the time Jennings made his said application for insurance and gave the paymaster's order as above mentioned, he was in the employ of the Cane Belt Railroad Company, in the state of Texas, working in the capacity of line repairer, and continued in such employ till the date of his injury, October 23, 1904, and was receiving for his services a salary of $60 per month. That on the above-mentioned date the insured, John E. Jennings, sustained accidental injuries, within the meaning of said policy of insurance, while engaged in gathering pecans, by falling from a pecan tree, from which injuries he died on the 4th day of November, 1904. That thereafter, to wit, on December 3, 1904, the defendant company received proof of the death of the said John E. Jennings in proper form on one of the blanks furnished by defendant for that purpose, but has failed and refused to pay the amount of said policy, or any part thereof. (5) That at the time of the accident and at the time of the death of John E. Jennings said policy of insurance had not been forfeited for the nonpayment of premiums and was in full force and effect. That while the premiums had not been paid in strict accordance with the terms of the original agreement between the insured and the defendant, yet the defendant had waived a forfeiture of the policy for such...