First Texas Prudential Ins. Co. v. Ryan

• Decision Date: 15 May 1935
• Docket Number: No. 1544-6337.,1544-6337.
• Citation: 82 S.W.2d 635
• Parties: FIRST TEXAS PRUDENTIAL INS. CO. v. RYAN et al.
• Court: Texas Supreme Court

Page 635

82 S.W.2d 635

FIRST TEXAS PRUDENTIAL INS. CO. v. RYAN et al.

No. 1544-6337.

Commission of Appeals of Texas, Section B.

May 15, 1935.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Lee Ryan and others against the First Texas Prudential Insurance Company. Judgment for plaintiffs was affirmed by the Court of Civil Appeals , and defendant brings error.

Judgments affirmed.

Templeton, Brooks, Napier & Brown, of San Antonio, for plaintiff in error.

Conger & Conger, of San Antonio, for defendants in error.

RYAN, Commissioner.

The trial court's findings of fact, approved by the Court of Civil Appeals, are substantially as follows:

On September 20, 1927, plaintiff in error issued to defendant in error Lee Ryan, aged twenty-four, a life insurance policy in the sum of $1,000, naming Mary Ryan, his mother, as beneficiary, same being a twenty-year payment life policy with annual premium of $24.19, payable annually, semi-annually, quarterly, or monthly. It contained a rider providing, among other things, that if no premium is in default and before the policy anniversary on which the insured's age at nearest birthday is sixty years, the company shall receive due proof of the insured's disability, as thereinafter defined, the company will then waive the premium as it may thereafter become payable under the policy and will pay to the insured, or, if insanity be the cause of disability, to the beneficiary, a monthly income of $10 the first payment to be made upon approval of proof of disability and subsequent payments on the tenth day of each succeeding month during the continuance of such disability or until the maturity of the policy; the premiums so waived and the disability income so paid shall not be deducted from the amount of insurance and the loan and cash values shall increase from year to year as though the premiums were being paid in cash.

Total and permanent disability of the insured within the meaning of the policy is defined as either (1) disability caused by bodily injury or disease which totally and continuously prevents the insured and presumably will permanently prevent him from performing any work for compensation or profit or from following any gainful occupation, provided such disability has at the time of the receipt of proof thereof existed for not less than sixty days; or (2) disability caused by bodily injury or disease which totally and continuously prevents the insured from performing any work for compensation or profit or from following any gainful occupation and has continuously so prevented him for a period of not less than six months immediately preceding the date of receipt of proof thereof.

Lee Ryan was admitted to the San Antonio State Hospital for treatment as insane on February 7, 1929, and was continuously confined in said institution from that date until May 17, 1930, when he was discharged as cured; during the period of confinement he was insane within the meaning of the policy, and by reason thereof totally and continuously prevented from performing any work for compensation or profit or from following any gainful occupation, said condition was presumably permanent and existed for more than six months before the making of proof and giving of notice thereof, such proof and notice having been made to the company on November 7, 1929.

The company attempted to forfeit the policy for failure to pay the premium due on June 20, 1929, and attempted to so notify Lee Ryan of its action in declaring said policy forfeited; plaintiff by his next friend, E. G. Le Stourgeon, and George L. Conger, his attorney, used due diligence, after being informed of the condition of the policy, to make due proof of the insured's insanity, and to make demand for reinstatement thereof and for benefits thereunder, and to institute suit thereon on the company's refusal to so reinstate and pay the benefits thereunder.

Having been insane from February 7, 1929, to May 17, 1930, there would have accrued to Mary Ryan, beneficiary, at $10 per month, as provided in the policy, the sum of $153.33; the premium accrued from May 17, 1930, when the insured recovered his sanity, to the date of judgment below, amounts to $19.47.

Because of the company's refusal to reinstate the policy and pay the benefits thereunder, employment of counsel became necessary—$100 being a reasonable fee.

The suit was originally instituted by Le Stourgeon, as next friend, but on March 27, 1931, averring recovery of sanity since May 17, 1930, by amended petition, Lee Ryan, joined by his mother, Mary Ryan, and her husband, C. C. Ryan, became plaintiffs; recovery was sought by Mary Ryan for the sum of $10 per month from February 7, 1929, to May 17, 1930, and by Lee Ryan for the reinstatement of said policy as of its original date and compliance with its terms and conditions and attorney's fee. He alleged readiness, ability, and willingness to pay all premiums due since the time of his restoration to sanity when the policy is reinstated.

The company excepted generally and specially to the petition, pleaded general denial, and specially that the plaintiff has never been insane, but has been sane at all times and mentally capable of performing work for compensation or profit and has been so engaged at several times since February 7, 1929; that the policy lapsed because of nonpayment of premium due on June 20, 1929.

Trial before the court without a jury resulted in judgment awarding Mary Ryan the sum of $153.33, reinstatement of the policy of insurance upon payment by Lee Ryan of the sum of $19.47 to cover premiums accrued since May 17, 1930, and recovery by him of the sum of $100 for attorney's fees incurred by him, which judgment was affirmed by the Court of Civil Appeals. 48 S.W.(2d) 750, 752.

Opinion.

1. The findings of fact, supported, as they are, by evidence are conclusive on us.

Plaintiff in error misconstrues the effect of the opinion of the Court of Civil Appeals, on motion for rehearing, wherein it is said: "Neither the findings of fact nor the conclusions of law were excepted to by appellant, and they reflect the testimony and the law appropriate to them, and they are binding upon appellant. The...