Employers' Liability Assur. Corp. v. Rochelle

• Decision Date: 23 April 1896
• Citation: 35 S.W. 869
• Parties: EMPLOYERS' LIABILITY ASSUR. CORP. OF LONDON, Limited, v. ROCHELLE.
• Court: Texas Court of Appeals

35 S.W. 869

EMPLOYERS' LIABILITY ASSUR. CORP. OF LONDON, Limited, v. ROCHELLE.

Court of Civil Appeals of Texas.

April 23, 1896.

Appeal from district court, Smith county; Felix J. McCord, Judge.

Action by Mary Rochelle against the Employers' Liability Assurance Corporation of London, England, Limited. Judgment for plaintiff. Defendant appeals. Reversed.

H. C. & Cone Johnson and T. O. Woldert, for appellant. Duncan & Jones, for appellee.

PLEASANTS, J.

This appeal is from a judgment rendered for appellee for $2,248.75 against appellant upon an accident insurance policy for $1,500, issued to W. A. Price, the then husband of appellee. The amount recovered included the amount of the policy, interest, a penalty of 12 per centum on the amount of the policy, and attorney's fees in the sum of $250. The policy was issued on the 26th of September, 1889, and a copy of the policy was made a part of the petition. The portions of the policy bearing upon the questions discussed in the briefs of counsel are as follows: "In consideration of the warranties contained in the application for this policy, which is made a part hereof, and of an order on the paymaster of the employer of the person hereby insured for $15.00, the Employers' Liability Assurance Corporation does hereby insure W. A. Price from date of this policy, at noon, for the period or periods specified in the agreements and conditions herein contained, including those printed on the back of this policy, against bodily injuries, within the meaning of this policy, caused by external, violent, and accidental means, subject and according to such agreements and conditions in the principal sum of $1,500." Among other agreements and conditions of the policy were the following: (1) "The premiums specified in the paymaster's order herein referred to are premiums for consecutive periods of two, two, three, and five months; and each shall apply only to its corresponding insurance period. And the corporation will not be liable for any injuries sustained by the insured during any period for which its respective premium has not been actually paid." (2) "This policy does not insure against death, or any kind of disablement occasioned, directly or indirectly, by entering or by trying to enter or leave a moving carriage using steam or electricity as a motive power; railroad employés excepted." (3) "In the event of any accident hereby insured against happening to the insured, written notice containing full name and address of the insured, with full particulars of accident, shall be given within thirty days of its occurrence to the managers, or the agent of the corporation whose name is indorsed on this policy." (4) "Unless affirmative proof of death or duration of disability be furnished within seven months from time of accident, all claims based thereon shall be forfeited to the corporation." The order given by the assured on the railroad of which he was then an employé was in these words: "Pay to the Employers' Liability Assurance Corporation, Limited, the following sums: $3.75 for October, 1889, $3.75 for Nov., 1889, $3.75 for December, 1889, $3.75 for January, 1890. These sums are premiums on an accident insurance policy issued to me by the said corporation, bearing the same date and number as this order. If the agreements and conditions of said policy are complied with, the first payment makes said policy good for two months; the second payment for four months; the third for seven months; and the fourth for twelve months, respectively, from said date." The petition alleged that the policy was payable to plaintiff in case of the death of the insured by accident, alleged compliance with and performance of the agreements and conditions of the policy, and the death of the assured by accident; that within the required time defendant was notified of the death of said Price, and the manner in which he was killed, and that, immediately after receiving the notice, the defendant refused to recognize or consider the claim of plaintiff for any part of the policy, on the ground that the policy had expired at the time of the injury and death of Price. The defendant answered the plaintiff's suit by general and special exceptions, by general denial, and by special averments that the policy was not in force at the time of the accident which caused the death of the insured, by reason of the fact that the order given upon the paymaster of the railroad for which the insured was working at the date of the order for the payment of the premium covering the period in which the insured was killed had not been paid. Defendant also answered that the insured was killed by a moving train of steam cars while attempting to board the same, and that, under the terms of the policy, defendant was not liable for injuries received under such circumstances.

The first assignment of error is, we think, without merit. The petition does, by its terms, allege that the plaintiff was the beneficiary of the policy. Nor did the court err in giving the instruction to the jury complained of under the appellant's twelfth assignment of error. The insured, when he took out the policy, was a railroad employé, and by ceasing to be such and becoming a farmer he did not thereby forfeit the benefit of the exception in the policy in favor of railroad employés. He had contracted to pay the higher premium demanded for insurance against accident of those engaged in hazardous employments, and it does not lie in the mouth of the defendant, for the purpose of avoiding its contract, to say that the insured, when injured, was engaged in an occupation less dangerous to life or limb than was his occupation at the date of the policy, and that, therefore, the exception in the policy allowing railroad operatives to board a moving train was inoperative at the time of the accident. As one contracts, so he is bound.

The court did not err in overruling the defendant's fourth exception to the petition. It was not incumbent on plaintiff to deny that the insured came to his death by any of the means which, by the terms of the policy, would relieve the defendant from liability under its contract. The exceptions in the...