Cunningham v. Great Southern Life Ins. Co.

• Decision Date: 07 October 1933
• Docket Number: No. 12870.,12870.
• Parties: CUNNINGHAM v. GREAT SOUTHERN LIFE INS. CO.
• Court: Texas Court of Appeals

66 S.W.2d 765

CUNNINGHAM v. GREAT SOUTHERN LIFE INS. CO.

No. 12870.

Court of Civil Appeals of Texas. Fort Worth.

October 7, 1933.

Rehearing Denied November 18, 1933.

Appeal from District Court, Montague County; Vincent Stine, Judge.

Suit by C. E. Cunningham, administrator of the estate of L. H. Aldriedge, deceased, against the Great Southern Life Insurance Company. From the judgment, plaintiff appeals.

Reversed and rendered.

Homer B. Latham, of Bowie, for appellant.

Vinson, Elkins, Sweeton & Weems and Fred R. Switzer, all of Houston, for appellee.

DUNKLIN, Justice.

On April 1, 1912, the Oklahoma Life Insurance Company of Oklahoma City issued to Leonard H. Aldriedge a life insurance policy reading in part as follows:

                "No. 4325                      Age 39 years
                "Amount $1,000.00           Premium $33.95
                

"The Oklahoma National Life Insurance Company A stock company of Oklahoma City, U. S. A. Will Pay $1,000.00 One Thousand Dollars to Beneficiary Polkey Aldriedge (Wife): of the insured, (the Beneficiary hereunder), at its

"Where payable: Home Office in Oklahoma City, U. S. A.

"When payable: Immediately upon receipt of due proofs of the death of the Insured Leonard H. Aldriedge (The insured hereunder), if such death occur during the continuance of this contract.

"Double Indemnity

"Or, in the event of the death of the Insured during the premium paying period by external violent and accidental means (Not including suicide, sane or insane, or homicide) and such death resulting directly, independently and exclusively of all other causes, and occurring within twenty days after, such injury and before the Insured shall have attained the age of sixty years, the amount payable hereunder, as above, shall be $2,000.00 Two Thousand Dollars.

"Beneficiary Insurance

"Or, in the event of the death of the Beneficiary first above named during the premium paying period, by external, violent and accidental means, (not including suicide, sane or insane, or homicide), and such death resulting directly, independently and exclusively of all other causes from injuries sustained while riding in or on any vehicle or public or private conveyance and occurring within twenty days after such injury, provided such Beneficiary is not at the time of death under sixteen or over sixty years of age, the Company will pay to the Insured hereunder $1,000.00 One Thousand Dollars Immediately upon receipt of due proofs of the death of said Beneficiary in the manner designated.

"Total and Permanent Disability

"Or, if the Insured shall become totally and permanently disabled from any cause whatsoever, so as to prevent him from pursuing any and all gainful occupations, (such total and permanent disability occurring during the premium paying period and before the Insured shall have attained the age of sixty years); and upon furnishing due proofs to the company of such disability, there shall be payable hereunder to the Insured the sum of $1,000.00 One Thousand Dollars Payable in Ten Annual Installments in ten equal annual installments, the first installment being payable immediately upon due proofs of such claim for disability. Should the Insured die before all of the ten installments shall have been paid, then any remaining installments will be continued to the Beneficiary, or may be commuted and paid in one sum.

"This Policy is issued in consideration of the conditions stated on the second, third, fourth and fifth pages hereof, all of which, including the privileges and benefits there designated, are made a part of this contract as fully as if recited at length over the signatures hereto affixed.

"In witness whereof, The Oklahoma National Life Insurance Company has caused this Policy to be signed by its President and Secretary at Oklahoma City, U. S. A., this First day of April, 1912.

                "F. E. Beaty            O. E. McCartney
                    "Secretary                   President
                

"The 4 Special Benefits are enumerated and described on the last page of this Policy.

"Ordinary Life Guaranteed Premium Reduction Policy Non-Participating.

"Second Page

"I. Guaranteed Premium Reductions

"This Policy is issued on the Guaranteed Premium Reduction Non-Participating Plan. The attached Premium Reduction Coupons may be applied by the Insured in any one of the following ways:

"Reduce Cost

"First. The amount called for by each coupon, as it becomes due, may be applied in part payment of the premiums hereon from year to year.

"Reducing Time

"Second. The Insured may elect to pay all premiums in full and leave with the Company the amount represented by the Coupons on this Policy, in which case the Company guarantees that this Policy will be full paid-up, as a Non-Participating whole Life Policy, after paying premiums in cash for Twenty-one full years, and the delivery of all the attached coupons to the company.

"Options end of Twenty Years.

"Third. The Insured may elect to pay all premiums in full without reduction for the full period of Twenty Years, leaving with the Company the amounts represented by the Coupons on this Policy, in which case the Insured shall be entitled to select any one of the Optional Settlements enumerated in Paragraph IX hereof.

"Coupons Payable on Presentation

"Fourth. All coupons left with the Company, and before their surrender for Cash or paid-up insurance, shall be payable at any time on presentation, with compound interest at the rate of three and one-half per cent per annum for each full year such Coupons are left with the Company.

"Coupons Added to Face of Policy at Death

"Fifth. In the event of death of the Insured the amount of any Coupons not yet cashed or surrendered, and bearing date prior to said death shall be paid to the Beneficiary with compound interest at the rate of Three and one-half per cent per annum, in addition to the sum insured.

"II. Incontestability

"From Date

"This Policy is incontestable from its date, except for non-payment of premium; and provided, that in the event of death of the Insured by his own hand or act, whether sane or insane, within one year from date hereof, the liability of the Company hereunder is expressly limited to ten per cent of the amount first named herein, which amount shall be in lieu of all other benefits payable hereunder.

"III. Grace in Payment of Premiums

"One Month

"A grace of one month, subject to an interest charge at the rate of six per cent per annum, shall be granted for the payment of every premium after the first, during which month the insurance shall continue in force. If the insured shall die during the month of grace the overdue premium will be deducted from any amount due hereon in any settlement hereunder.

"IV. Automatic Extension

"After One Year

"Should the Insured fail to pay any premium hereon, after one full annual premium has been paid, This Policy, without any action on the part of the Insured, will be extended for the sum first named herein, for the period of time designated in Column Four of the Table of Guaranteed values endorsed on page three hereof.

"V. Guaranteed Surrender Values

"Cash Surrender

"All premiums hereon having been paid in full, the Insured, upon surrender and cancellation thereof, within one month after default in payment of any premium or installment thereof, will be entitled to withdraw, in Cash, the amount designated in Column One of the Table of Guaranteed Values on page Three hereof opposite the year corresponding to the whole number of years for which premiums have been paid.

"Paid up Insurance

"Or, in lieu of Cash, may exchange this Policy for a Paid-up Non-Participating, Whole Life Policy, for the amount designated in column three of said Table of Guaranteed Values opposite the year corresponding to the whole number of years for which premiums have been paid.

"VI. Cash Loans

"Loans at 6 per cent

"On demand, in writing, to the Home Office of the Company at any time, the Insured may borrow on the sole security of this Policy, the amount designated in Column Two of the Table of Guaranteed Values for the end of the Policy year previous to that in which the loan is taken, subject to interest, in advance, to the end of the current Policy year, at the rate of six per cent per annum. This Policy shall be assigned to the company as security according to the terms of the Company's loan agreement and the premiums hereon shall be paid in full to the anniversary of the Policy next succeeding the date when the loan shall be made. Any previous loan unpaid and accrued interest thereon shall be deducted from the total loan available hereunder at any time.

"Failure to repay any loan or interest thereon shall not avoid this policy until the total indebtedness hereon shall equal or exceed the total loan available.

"VII. Reinstatement of Policy

"At Any Time

"In case of default in the payment of any premium or interest, the Company will reinstate this Policy at any time, if not previously surrendered for its Cash Value, upon written application by the Insured to the Company at its Home Office with evidence of insurability satisfactory to the Company and the payment of all premiums that would have been paid in the intervening time if no default had been made, with interest thereon at the rate of six per cent per annum computed from the premium due date, and payment or re-instatement of any indebtedness existing at the time of default with interest at like rate.

"VIII. Change of Beneficiary

"At any time.

"The Insured hereunder reserves the right of revocation and change of Beneficiary, and if this Policy is not assigned, the Insured may, at any time while the same is in force, designate a new beneficiary by filing written notice thereof at the Home Office of the Company, accompanied by the Policy for suitable endorsement thereon. Such change shall take effect only upon approval of the application therefor by the Company and the endorsement of the same on the Policy. If there be no Beneficiary living at the death of the...