Hatch v. Turner

• Decision Date: 08 November 1945
• Docket Number: No. 6175.,6175.
• Citation: Hatch v. Turner, 191 S.W.2d 701 (Tex. App. 1945)
• Parties: HATCH et al. v. TURNER.
• Court: Texas Court of Appeals

Page 701

191 S.W.2d 701

HATCH et al. v.TURNER.

No. 6175.

Court of Civil Appeals of Texas. Texarkana.

November 8, 1945.

Rehearing Denied November 22, 1945.

Appeal from District Court, Fannin County; A. S. Broadfoot, Judge.

Suit by H. B. Hatch and others against George E. Turner, individually and as administrator of the estate of George E. Turner, Jr., deceased, for conversion, to establish a debt and lien, and for certification of the judgment in the administration of the estate.From a judgment for defendant, plaintiffs appeal.

Affirmed.

O. B. Fisher, of Paris, for appellants.

Prentice Wilson, of Dallas, for appellee.

WILLIAMS, Justice.

George E. Turner, Jr., deceased, hereinafter referred to as the insured, purchased an automobile from Hatch Chevrolet Company in Stockton, California.The deferred payment in the sum of $1188.84, payable in twenty-four successive monthly installments, was evidenced by a conditional sales contract which retained a lien on the automobile in favor of Hatch.As a part of the transaction, insured purchased a life insurance policy through Hatch issued by the Occidental Life Insurance Company of Los Angeles, California, for which he paid $42.80, the premium called for in the policy.The policy bearing even date with the conditional sales contract, namely, May 5, 1941, was made payable to Hatch as their interests may appear at the time of and in the event of the death of the insured.This policy was delivered to and held by Hatch as further security on the deferred payments.In the application of insured, which application is attached to and made a part of the policy, the insured represented and disclosed in writing therein that his age was twenty-five years and his occupation at the time was a "flying cadet in the United States Army."He was then in training at an airfield near Stockton, California.He was still in training as a "flying cadet in the United States Army" at an airfield in Nevada when he was killed in an airplane accident on December 10, 1941, two days after the United States had declared war against Japan.After his death, Hatch, who had at all times retained possession of the policy, submitted proof of loss to the Insurance Company which denied liability under the policy, except the obligation to return the premium of $42.80.On March 5, 1942, Hatch accepted the $42.80 and credited such sum on insured's indebtednes and surrendered the original policy to the Insurance Company.Hatch made above settlement with the Insurane Company without the consent and over the protest of the administrator of insured's estate, and in the trial offered no testimony in explanation of their compromise, settlement and surrender of the policy.The Insurance Company was solvent at all times here involved.

The policy in question recited that the Insurance Company "Agrees to pay the sum of Eleven Hundred Eighty-Eight 84/100 Dollars or such lesser sum owing at the time of death of the Insured to Hatch Chevrolet Company, Creditor of George E. Turner the Insured immediately upon receipt of due proof of death during the continuance of this Policy.Such payment shall be subject to the following provision:

"The amount of insurance shall be as stated in the application herefor, and said insurance shall be on the Monthly Decreasing Term Insurance Plan for the term of 12 months which is the term of the Insured's contract of indebtedness with the Creditor.The amount so insured shall decrease each month as and when credits are allowed on the Insured's contract of indebtedness with the Creditor bearing the same date as stated in the application herefor, until the terms of said original contract of indebtedness expires.

"This policy is issued in consideration of the written and printed application therefor which is made a part of this contract and of the payment of Forty-two 80/100 Dollars, constituting payment for the number of months from the date of issue of this Policy as set forth in the preceding paragraph.

"This policy shall continue in force for the term of months stated above from the date on which it takes effect, and at the end of said period it shall cease and determine and be of no further effect.The provisions and conditions printed on the reverse side hereof are a part of this contract as fully as if recited over the signatures hereto."

Then follows date of policy, where issued, and the signatures of the President and Secretary of the Insurance Company.Insured's application for the insurance containing the data above mentioned then follows on the face of the policy.On the back of the policy, which is a one-sheet instrument, appears stipulations and conditions of the policy placed thereon in print by a power printing press.The provisions printed on the back will be omitted as they are not pertinent to any point here involved.Below the printed provisions just referred to appears a heavy line.Below said line, on the back of the policy, is an endorsement affixed thereon by a rubber stamp, which reads:

"This policy is issued on the express and essential condition that notwithstanding anything contained in any other provision hereof to the contrary, the amount payable hereunder shall be limited to the sum of the premiums paid hereon or the face amount of insurance, whichever shall be the less, in the event that death occurs from any cause while the insured is engaged in service in the air forces of any country at war or within six months after the termination of such service."

It was stipulated between the litigants that the above was a true and correct copy of the original policy so issued at the time of the purchase of the automobile, but it was further agreed that this stipulation "shall not prejudice the right of the appellee to contend and shall not constitute a waiver of contention that the stamped provision on the back of the policy is not a part of the policy and is not binding upon the representatives of the estate of George E. Turner, Jr., as a matter of law by reason of other provisions printed in the policy."

Shortly after insured's death, George E. Turner, Sr., qualified as administrator of his son's estate, and possession of the automobile which he still holds was delivered to him as such administrator by a summary court officer of the United States military services.After crediting the $42.80 on insured's indebtedness, H. B. Hatch et al., the members of a partnership, appellants herein, filed this suit against appellee, George E. Turner, Sr., individually, to recover by reason of his alleged conversion of the automobile, and against him in his official capacity to establish their debt and lien in the sum of $869.20, the alleged balance due on the purchase price after crediting the $42.80, and for certification of such judgment to...