General Life Ins. Co. v. Potter

• Decision Date: 27 January 1939
• Docket Number: No. 1877.,1877.
• Citation: 124 S.W.2d 409
• Parties: GENERAL LIFE INS. CO. v. POTTER.
• Court: Texas Court of Appeals

Page 409

124 S.W.2d 409

GENERAL LIFE INS. CO. v. POTTER.

No. 1877.

Court of Civil Appeals of Texas. Eastland.

January 27, 1939.

Appeal from Rains County Court; Joel W. Lennon, Judge.

Action by Nellie Potter against the General Life Insurance Company on a life insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Bond & Porter, of Terrell, for appellant.

Harlee Morrison, of Terrell, for appellee.

GRISSOM, Justice.

Nellie Potter sued the General Life Insurance Company on a life insurance policy insuring the life of her husband, William E. Potter, deceased, seeking recovery of the amount of said policy, to-wit: $500, plus penalty and attorney's fees. The defense asserted was that at the time of the application for and issuance of the policy of insurance, and at times when the policy had lapsed for non payment of monthly premiums, that the insurance was reinstated, upon condition that deceased was then in good health, and that at all of said times deceased was in fact not in good health but was then afflicted with cancer of the lungs. As a defense to the suit for penalty and attorney's fees, the defendant alleged that defendant was a State wide mutual insurance company, operating under the provisions of Art. 4859f, Vernon's Ann.Civ.St., and that, therefore, the statute (Art. 4736, R.S., Vernon's Ann.Civ.St. art. 4736) providing for penalty and attorney's fees was not applicable to the defendant, and for that reason the defendant was not liable for the penalty and attorney's fees sued for.

Ultimate issues of fact were not submitted to the jury. The issues submitted, with the exception of issue No. 4, inquiring as to what was a reasonable attorney's fee in the case, and relative to which there was no competent evidence, consisted of either questions of law, or mixed questions of law and fact, such as: (1) Was there a legal contract of insurance entered into between defendant and deceased? (2) Was the insurance policy in effect at the time of the death of deceased? (3) Was the defendant a state wide mutual association operating under Art. 4859f, and exempt from payment of 12 per cent penalty? (5) Should plaintiff recover judgment for the full face value of the policy? All of the issues, including issue No. 4, which inquired what was a reasonable attorney's fee, were answered "Yes."

Upon the verdict of the jury, the court rendered judgment for plaintiff against defendant for $500, the amount of the policy, $60 penalty, and $175 attorney's fees.

The evidence shows conclusively that appellant is a state wide mutual insurance association, operating under the provisions of Art. 4859f. Article 4736 providing for 12 per cent penalty and attorney's fees is not applicable to the defendant. Sec. 19, Art. 4859f; Logan v. Texas Mut. Life Ins. Ass'n, 121 Tex. 603, 51 S.W.2d 288, 53 S.W.2d 299; Bankers Life & Loan Ass'n v. Chase, Tex.Civ.App., 114 S.W.2d 374. Since the evidence is conclusive that the defendant is a state wide mutual insurance association operating under Art. 4859f, and exempt from the payment of penalty provided in Art. 4736, special issue No. 3 should not have been submitted to the jury. But, if there had been a dispute in the evidence as to whether the defendant was such a state wide mutual insurance association, operating under Art. 4859f, since the jury found as a matter of fact that it was such an association and exempt from the payment of 12 per cent penalty for failure to pay the beneficiary within thirty days after receipt of proof of loss and notice of death, there could be no justification for the judgment for penalty and attorney's fees.

There is another reason why the judgment for attorney's fees was not authorized. Special issue No. 4, which inquired what amount would be a reasonable attorney's fee in the case, was answered "yes." Such answer of the jury, of course, would not authorize the judgment for $175 attorney's fees. The judgment recites that the fact that $175 was a reasonable attorney's fee was established by the "uncontradicted evidence." The only evidence called to our attention with reference to this question was evidence, properly objected to, as to what would be a reasonable contingent fee, that is, a fee contingent upon winning the case. Thus, it appears that not only was such fact not established by the undisputed evidence, but there was no competent evidence to establish what was a reasonable attorney's fee in the case. Therefore, it results that if the provisions of Art. 4736, authorizing the collection of reasonable attorney's fees, were applicable to the defendant, a state wide mutual insurance association operating under provisions of Art. 4859f, nevertheless, the introduction of evidence as to what would be a reasonable contingent fee, over proper objection, constitutes error. Where applicable, Art. 4736 does not authorize recovery of a reasonable fee contingent upon winning the case, but, said article contemplates the recovery of only such a fee as would be reasonable for Mrs. Potter to pay her attorney for prosecuting her case. Southland Life Ins. Co. v. Norton, Tex.Com.App., 5 S.W.2d 767.

The court erred in permitting the witness, Dr. Friddell, to read to the jury from "Cecil's Text Book of Medicine" a statement as to the usual length of life of a person afflicted with cancer of the lungs. Such evidence was objected to, among other things, as hearsay. The objection should have been sustained. "Books of science are not admissible in evidence to establish the doctrines therein affirmed." St. Louis A. & T. Ry. Co. v. Jones, Tex. Sup., 14 S.W. 309, 310. Also, see, Burt v. State, 38 Tex.Cr.R. 397, 40 S.W. 1000, 1002, 43 S.W. 344, 39 L.R.A. 305; Gulf C. & S. F. Ry. Co. v. Farmer, Tex.Civ. App., 108 S.W. 729, 732; Missouri, K. & T. Ry. Co. v. Robertson, Tex.Civ.App., 200 S.W. 1120, 1121; Galveston, H. & S. A. Ry. Co. v. Hanway, Tex.Civ.App., 57 S. W. 695, 697; San Angelo Water, Light & Power Co. v. Baugh, Tex.Civ.App., 270 S. W. 1101, 1105; Boyle v. State, 57 Wis. 472, 15 N.W. 827, 46 Am.Rep. 41.

The action of the court in permitting non expert witnesses, who had observed the deceased over a long period of time, to testify, in effect, that at the times defendant claimed deceased was afflicted with cancer of the lungs he was in good health so far as they knew, that he appeared to be in good health, looked healthy as usual, that he continued his work to a certain time, and the like, was not error.

In Turner v. Stoker, 289 S.W. 190, 192, writ refused, this court held that plaintiff's testimony "that he considered the injury to his jaw permanent" and "that the injury would last all his life" was admissible. That opinion cited Abee v. Bargas, Tex. Civ.App., 65 S.W. 489, where a non expert witness was permitted to testify that plaintiff was paralyzed and could not speak. Also, San Antonio Traction Co. v. Flory, 45 Tex.Civ.App. 233, 100 S.W. 200, 202, writ refused, where a non expert witness was permitted to testify that plaintiff "was all crippled up" and that "after [she] got up out of bed she could not lift anything" and "was always suffering pain", and that "after the accident she was not half the woman she was before."

In Texas Central R. Co. v. Claybrook, Tex.Civ.App., 178 S.W. 580, 581, writ refused, it was held that the testimony of a non expert that plaintiff "looked awful bad", that she was "down in bed" and "complained of her head, hip [and] thigh" clearly was admissible.

In National Life & Accident Insurance Co. v. Muckelroy et al., Tex.Civ.App., 40 S.W.2d 1115, 1116, which was a suit to cancel an insurance policy for misstatements as to...