Johnson v. Universal Life & Accident Ins. Co.

• Decision Date: 03 June 1936
• Docket Number: No. 1625-6583.,1625-6583.
• Citation: 94 S.W.2d 1145
• Parties: JOHNSON v. UNIVERSAL LIFE & ACCIDENT INS. CO.
• Court: Texas Supreme Court

94 S.W.2d 1145

JOHNSON v. UNIVERSAL LIFE & ACCIDENT INS. CO.

No. 1625-6583.

Commission of Appeals of Texas, Section B.

June 3, 1936.

Certified Question from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by Ada Johnson against the Universal Life & Accident Insurance Company. From the judgment, plaintiff appealed to the Court of Civil Appeals, which certified a question to the Commission of Appeals.

Question answered.

Harry R. Bondies, of Sweetwater, for appellant.

Cox & Hayden, of Abilene, for appellee.

RYAN, Commissioner.

The Honorable Court of Civil Appeals, Eleventh District, at Eastland, certifies the following question, viz.:

"In a suit upon a life insurance policy where an attorney's fee is claimed in plaintiff's petition as provided for in art. 4736, as amended in 1931 [Vernon's Ann.Civ.St. art. 4736], should the amount of such claimed attorney's fee be regarded, for jurisdictional purposes, as a part of the amount in controversy in the suit?"

It appears from the accompanying statement that this suit was instituted in the county court of Nolan county by appellant, Ada Johnson, on a policy of life insurance issued to her husband, Buck Johnson, now deceased, in which policy she was named as beneficiary. The amount claimed to be due upon the policy was $114.10. Appellant sought an attorney's fee of $100 and 12 per cent. damages as provided in Revised Statutes, art. 4736, as amended by the 42d Legislature, 1931, p. 135, c. 91 (Vernon's Ann.Civ.St. art. 4736). The amount in controversy, excluding the attorney's fee, is less than $200, but including such fee is more than $200.

Opinion.

Until amended by act approved April 27, 1931 (chapter 91, Gen.Laws 42 Leg.), article 4736, Rev.Stat.1925, provided that on failure of an insuring life insurance company to pay a loss within thirty days after demand therefor, it shall be liable to pay the holder of such loss policy, in addition to the amount of the loss, 12 per cent. damages on the amount of such loss, together with reasonable attorney's fees for the prosecution and collection of such loss.

The amendment adds thereto the following: "Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy."

The antecedent statute has been repeatedly upheld. Union Central Life Ins. Co. v. Chowning, 86 Tex. 654, 26 S.W. 982, 24 A.L.R. 504; Connecticut Gen. Life Ins. Co. v. Bertrand (Tex.Com.App.) 65 S.W.(2d) 279.

The reasonableness of attorney's fees in an insurance case is a question of fact to be determined and must be supported by competent evidence and may be submitted to a jury. Connecticut Gen. Life Ins. Co. v. Bertrand (Tex.Civ.App.) 47 S.W.(2d) 631, affirmed (Tex.Com.App.) 65 S.W.(2d) 279; Norwood v. Washington Fidelity Insurance Co. (Tex.Civ.App.) 16 S.W.(2d) 842. The amount thereof must be pleaded to entitle a recovery therefor and is a part of the general recovery sought, whether under the original statutory provision or under the amendment of 1931; the latter being more explicit on the subject in requiring the court to take into consideration all benefits to the insured incident to the prosecution of the suit. It therefore enters into and becomes a part of the amount sued for.

The attorney's fee, when recoverable, goes to the insured and is part of his recovery.

By the term "costs" is generally understood the fees or compensation fixed by law collectible by the officers of court, witnesses, and such like items, and does not ordinarily include attorney's fees, which are recoverable only by virtue of contract or statute. 11 Tex.Jur. p. 320; People of Sioux County v. National Surety Co., 276 U.S. 238, 48 S.Ct. 239, 72 L.Ed. 547.

It will be noted that the amendment of 1931 does not change the right to recover attorney's fees, but only says that they shall be taxed as part of the costs. Of course, when collected, either by execution as to the main judgment into which they become merged, or with the ordinary costs of suit, they belong to the plaintiff, and the result is the same.

The amended act does not say that in ascertaining the amount in controversy, for jurisdictional purposes, the attorney's fees shall...