Grand Fraternity v. Nicosia

• Decision Date: 09 July 1931
• Docket Number: No. 1071.,1071.
• Citation: 41 S.W.2d 684
• Parties: GRAND FRATERNITY v. NICOSIA.
• Court: Texas Court of Appeals

41 S.W.2d 684

GRAND FRATERNITY v. NICOSIA.

No. 1071.

Court of Civil Appeals of Texas. Waco.

July 9, 1931.

Rehearing Denied September 17, 1931.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by Roselee Nicosia against the Grand Fraternity. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Tom M. Hamilton, of Waco, and Eckford & McMahon, of Dallas, for appellant.

F. M. Fitzpatrick, of Waco, for appellee.

ALEXANDER, J.

This was a suit brought by Roselee Nicosia against the Grand Fraternity, a fraternal beneficiary association, incorporated under the laws of the state of Pennsylvania, without capital stock. The plaintiff became a member of the fraternity in 1916 and was issued a life insurance certificate in the sum of $2,000, payable upon her death. In January, 1922, the fraternity canceled the certificate for alleged nonpayment of dues. The plaintiff sued for damages for the alleged wrongful cancellation of the certificate. She alleged that at the time said certificate was canceled she had a life expectancy of fourteen and one-tenth years, and that the face value of said certificate at maturity would have been $2,000, and that the unpaid premiums that she would have been required to pay would have amounted to $1,260.28. She prayed for the difference of $739.72. A trial was had before the court without a jury which resulted in a judgment in favor of the plaintiff for the sum of $308. The defendant appeals.

The trial court filed findings of fact in which it was found that the defendant issued and delivered its certificate to the plaintiff by which it agreed to pay the beneficiary named therein the sum of $2,000 upon the death of the insured; that the plaintiff paid all dues thereon up to April, 1922, but the defendant declared said certificate forfeited in January, 1922. The court also found that the plaintiff did not pay the dues for December, 1921, promptly when due, but that the defendant had a custom of allowing plaintiff to pay such dues after the expiration of the time allowed by the certificate, and that plaintiff had actually paid such dues within the time usually allowed to her, and that the company had accepted and retained such dues and had thereby estopped itself to claim that said certificate had been forfeited. These findings are supported by the evidence.

The only material question for consideration is the measure of damages to be applied. The court found the cash value of the policy to be $308 and allowed judgment for that sum. The appellant insists that the evidence is insufficient to justify a judgment for that amount.

Ordinarily, where an insurance company repudiates its contract of insurance and refuses to be further bound thereby, and the insured elects to accept the breach and to sue for the damages, the measure of his damages is the value of the policy at the time of the unlawful cancellation. Where the policy is a whole life policy and has no cash surrender value and is not fully paid up, as in this case, the value of the policy may be ascertained by taking the difference between the present value of the face of the policy, less the premiums which would become due during the period of expectancy with interest compounded at a reasonable rate. Supreme Lodge, Knights of Pythias, v. Neeley (Tex. Civ. App.) 135 S. W. 1046, at page 1050; Provident Savings Life Assurance Society v. Ellinger (Tex. Civ. App.) 164 S. W. 1024, par. 8; (writ refused); St. Louis & S. W. Ry. Co. v. Thompson, 102 Tex. 89, 113 S. W. 144, 147, 19 Ann. Cas. 1250; Mutual Reserve Fund...