Field v. Western Life Indemnity Co.

• Decision Date: 08 January 1921
• Docket Number: (No. 8419.)
• Parties: FIELD v. WESTERN LIFE INDEMNITY CO.
• Court: Texas Court of Appeals

227 S.W. 530

FIELD v. WESTERN LIFE INDEMNITY CO.

(No. 8419.)

Court of Civil Appeals of Texas. Dallas.

January 8, 1921.

Rehearing Denied February 12, 1921.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Kate S. Field against the Western Life Indemnity Company. From a judgment for plaintiff for an insufficient amount, she appeals. Affirmed.

Albert B. Hall, of Dallas, for appellant.

Harry P. Lawther, of Dallas, for appellee.

RAINEY, C. J.

This was an action instituted by appellant against appellee for the recovery of the amount of an insurance policy covering the life of Knight W. Field, deceased, and for interest, penalty, and attorney's fees, in which judgment was rendered for plaintiff and against defendant for the sum of $116.82, and for defendant against plaintiff for costs of suit. The case was tried to the court.

Plaintiff alleged that on July 1, 1913, at the request and on the application of Knight W. Field defendant executed and delivered its policy of life insurance by which it insured the life of said Knight W. Field for the sum of $1,000, payable to his mother, the plaintiff, within 30 days from the receipt of satisfactory proof of his death; that the consideration therefor was his agreement to pay a quarterly premium of $5.31; that thereafter, on to wit, the 7th day of October, 1918, said Knight W. Field died; that thereafter on, to wit, the 31st day of December, 1918, plaintiff sent defendant proof of death of said Knight W. Field on form furnished by it; that thereafter defendant refused to pay plaintiff the amount of said policy, and thereafter, on January 8, 1919, plaintiff demanded of defendant payment of the full amount of said policy, but defendant failed and refused to pay the same; that said Knight W. Field paid all of the premiums due on account of said policy to the date of his death, and defendant has failed to pay the amount of said policy within 30 days after demand therefor; that said defendant thereupon became liable to plaintiff for the amount of said policy, and also 12 per cent. thereof as damages and for a reasonable attorney's fee; that 12 per cent. of said policy is $120, and a reasonable attorney's fee is the sum of, to wit, $500, and plaintiff has agreed to pay her attorney a reasonable fee for the prosecuting of her suit, all to plaintiff's damage in the sum of, to wit, $2,000, and plaintiff prays for citation and judgment against defendant for $1,000 and interest thereon, and 12 per cent. thereof in addition as damages, and for $500 for attorney's fees as provided by law, and for costs and full relief.

Defendant answered by filing its plea of tender and stating a provision of the policy to the effect that its liability should be limited to the premiums paid thereon, if the insured shall, without its written permission, engage in military or naval service in time of war, and stating that the insured did, on the 9th day of May, 1917, engage in military service in time of war, without such permission; that thereafter, on the 7th day of October, 1918, the insured died, and thereafter defendant offered to pay plaintiff the amount of such premiums, to wit, the sum of $116.82; that said policy was issued by defendant in exchange for a certificate of the Royal Achates, dated and issued September 9, 1904; that said Knight W. Field died while in military service in France, and that defendant is willing to pay plaintiff the sum of $116.82, and has paid the same into the registry of the court, and asks for judgment that it go hence, and for costs. Plaintiff demurred to defendant's answer.

The court found that defendant did, on July 1, 1913, issue its policy of life insurance for $1,000 on the life of Knight W. Field, payable to his mother, Kate S. Field, as set forth in plaintiff's petition; that she had an insurable interest in his life; that he died on October 7, 1918, after having paid all of the premiums due on account of said policy; that plaintiff had complied with all provisions of the policy with reference to notice and proof of death, and more than 30 days before institution of suit demanded from defendant payment of $1,000 on account thereof; that said policy provided:

"Second. After one year from the date upon which this policy takes effect it shall be incontestable for any cause, except for breach of warrant or fraud in the application therefor, and except for nonpayment of premiums as herein provided. Third. The pecuniary liability of this company on this policy shall be limited to the aggregate amount of premiums paid thereon if at any time the insured shall, without the company's written permission, engage in military or naval service in time of war."

That in May, 1917, said Knight W. Field engaged in military service in time of war without the written permission of the defendant, and while in military service died in France by reason of suicide while insane; that the premiums paid on account of said policy aggregated the sum of $116.82; that a reasonable attorney's fee...