Englehart v. Volunteer State Life Ins. Co.

• Decision Date: 28 June 1946
• Docket Number: No. 2551.,2551.
• Citation: 195 S.W.2d 798
• Parties: ENGLEHART v. VOLUNTEER STATE LIFE INS. CO.
• Court: Texas Court of Appeals

195 S.W.2d 798

ENGLEHART v. VOLUNTEER STATE LIFE INS. CO.

No. 2551.

Court of Civil Appeals of Texas. Eastland.

June 28, 1946.

Rehearing Denied July 22, 1946.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by Nellie A. C. Englehart against Volunteer State Life Insurance Company to accelerate payments for total disability and declare all of the payments due under a life policy. From judgment dismissing the suit, plaintiff appeals.

Affirmed.

F. D. Wright, of Cisco, for appellant.

Turner & Seaberry, of Eastland, for appellee.

LONG, Justice.

This is a suit by Mrs. Nellie A. C. Englehart against Volunteer State Life Insurance Company. Mrs. Englehart alleged that the insurance company issued to her on February 4, 1930, a policy of life insurance in the principal sum of $1,000; that the policy contained a provision for the payment of a monthly income of one per cent of the face value of the policy in the event she became totally disabled, such payments to continue so long as the disability existed. She further alleged that on the 17th day of November, 1937, at a time when such policy was in full force and effect, she was totally and permanently disabled in an automobile wreck; that the company, after proper proof of such disability, began the monthly payments and continued the same until the 9th day of October, 1944, since which time it has failed and refused to make the payments. She sought to accelerate the payments and declare all of the same due, alleging that she had a life expectancy of 31.78 years, and she also prayed for 12 per cent penalty and a reasonable attorney's fee. The insurance company, among other defenses, plead that its refusal to pay the installments was based upon information that plaintiff was no longer totally and permanently incapacitated, and that it acted in good faith in refusing to make further payments, and that when it was found that such information was inaccurate it offered to pay all unpaid installments and tendered the amount of such payments into court. Upon a trial before the court judgment was entered dismissing the suit. Mrs. Englehart has appealed.

The trial court filed very comprehensive findings of fact, which we believe have ample support in the evidence. Such findings of fact are as follows:

"I. I find that the policy of insurance involved in this controversy was issued to the plaintiff, Nellie A. Carmichael Englehart, by the defendant, The Volunteer State Life Insurance Company of Chattanooga, Tennessee, on the 4th day of February, 1930; that under said policy at the death of the insured, the defendant company agreed to pay to the beneficiary, Anna Lockhart Carmichael, if living, the sum of One Thousand ($1,000.00) Dollars. If not living, to the executors, administrators or assigns of the insured.

"I find that the said policy further provided that if after one full annual premium had been paid thereon, and while the policy was in full force and effect, satisfactory proof to the Company was received at its home office, that the insured had become totally and permanently disabled as defined in the policy, that the defendant Company would, during such total disability, waive the payment of any premium falling due after approval of proof, during such disability, and that during such disability, said Company would pay to the insured a monthly income of one per cent of the face amount of said policy, beginning immediately upon approval of proof and continuing while such total disability continues, except the payment shall not continue beyond the maturity of the policy as an endowment; that the annual premium due and payable under said policy was the sum of $32.38; that said premiums were promptly paid by the plaintiff on the said policy until on or about the 17th day of November, 1938, at which date the plaintiff herein was injured in an automobile accident.

"II. That after the plaintiff's injury on said 17th day of November, 1938, the defendant Company was notified of such injury and proof thereof was made and delivered to said defendant Company, satisfactory to it, after which the said defendant made monthly payments to the plaintiff in the sum of $10.00, which said payments continued until on or about the 9th day of October, 1944.

"III. That during the month of October, 1944, a representative of the defendant called upon the plaintiff at Cisco, Texas, and discussed her physical condition with her and on said occasion made other investigations as to her physical condition at that time, and thereafter on November 2, 1944, informed the plaintiff by letter of that date that the recent investigation made by the defendant indicated that the plaintiff's condition was not such at that time as would entitle plaintiff under the terms of the policy to receive benefits under the total and permanent disability clause of the policy of insurance in controversy, and in said communication the defendant called plaintiff's attention to the clause of the insurance policy under which payments had been previously made, and requested that plaintiff read such provisions carefully; that in the same communication the defendant informed the plaintiff that all premiums on her policy of insurance, the one here in controversy, had been paid up to February 4, 1945, and that the next premium was due on that date, and that her policy of insurance was in full force and effect, subject to its terms and conditions.

"IV. That on November 10, 1944, at the request of the plaintiff, her attorney, Mr. F. D. Wright of Cisco, Texas, wrote the defendant Company at its home office in Chattanooga, Tennessee, acknowledging receipt by the plaintiff of the defendant's letter of November 2, 1944, expressing regrets of the attitude of the defendant and informing the defendant that it was the opinion of the writer, Mr. Wright, from his personal acquaintance with the plaintiff and the investigations which he had made in connection with her physical condition, that she, the plaintiff, was totally and permanently disabled and was entitled under the terms of the insurance policy in controversy, to continue to receive the monthly payments, and that such letter was promptly received by the defendant Company.

"V. That on November 15, 1944, the defendant company, through its attorneys, Miller, Miller & Martin of Chattanooga, Tennessee, wrote the plaintiff's attorney, Mr. F. D. Wright, at Cisco, Texas, advising that the defendant Company had turned over to the said attorneys their files in connection with the insurance policy and that in said files was the letter written by Mr. Wright to the defendant on November 10, 1944. In this communication the defendant's attorneys stated that the information which they found in the files is to the effect that Mrs. Englehart, plaintiff herein, was a very competent business woman and was handling in a capable manner her part of the work in the store which she and her father operated; that they...