Maryland Casualty Co. v. McGill

• Decision Date: 02 March 1934
• Docket Number: No. 1243.,1243.
• Citation: 69 S.W.2d 158
• Parties: MARYLAND CASUALTY CO. v. McGILL.
• Court: Texas Court of Appeals

69 S.W.2d 158

MARYLAND CASUALTY CO. v. McGILL.

No. 1243.

Court of Civil Appeals of Texas. Eastland.

March 2, 1934.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Norine Prudom McGill against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

R. H. Mercer, of San Antonio, for appellant.

David C. Brown and Elbert R. Spence, both of San Antonio, for appellee.

HICKMAN, Chief Justice.

Appellee brought this suit upon a special automobile accident policy alleged to have been issued by appellant to William B. McGill, her deceased husband. A copy of the policy was attached to her petition and made a part thereof by reference. She was named as beneficiary in the policy as to the indemnity payable thereunder for loss of life of the insured, but, by the express terms of the policy, all other indemnities were payable to the insured. The provision is expressed in this language: "Indemnity for loss of life of the insured is payable to the beneficiary if surviving the insured, and otherwise to the estate of the insured. All other indemnities of this policy are payable to the insured."

No recovery was sought for the loss of life of the insured, but recovery was sought alone for indemnities under the following provisions:

"Section II. * * * (A) From the date of the accident wholly and continuously prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay a weekly indemnity of Twenty-Five Dollars for the period of such disability, but not exceeding twenty-six consecutive weeks.

"Section III. (A) If by reason of a bodily injury so sustained for which indemnity is payable under this policy, the insured shall be removed to a hospital, or if such injury necessitates the attendance of a graduate nurse, the company will pay an additional indemnity at the rate of Fifteen Dollars per week for the period of hospital confinement or nurse's attendance, as the case may be, but not exceeding four consecutive weeks."

By the allegations of her petition, all of these indemnities accrued during the lifetime of the insured. There is absent any allegation showing whether the insured died testate or intestate, whether or not he left any heirs other than appellee, or whether there was any administration pending upon his estate or any necessity therefor. In short, appellee declared upon a policy for indemnities which, by the terms thereof, were not payable to her. Appellant first filed a general demurrer and general denial. Later it filed its first amended original answer, consisting of a plea in abatement, general demurrer, special exceptions, general denial, and special pleas. The plea in abatement, general demurrer, and certain of the special exceptions were overruled, and the case tried on its merits. Upon the verdict of the jury returned in answer to special issues, judgment was entered for appellee for the amount claimed to be due under the policy, including interest, penalties, and attorney's fees. Appellant's brief contains fifty-four propositions, based, upon forty-seven assignments of error, but, under the views entertained by us on the question of pleadings, we shall find it unnecessary to discuss all these various propositions.

Appellee's petition alleged no right whatever in her to recover for the indemnity payable by the terms of the policy to the insured. As the beneficiary of the indemnity for loss of life of the insured, she could have maintained an action therefor, but that question is not involved. By her suit she sought to recover only for indemnities which accrued to the insured during his lifetime. Recovery for these indemnities could be had only by the legal representatives of the estate of the insured, or, in case there was no administration, or necessity therefor, then by his legatees or heirs. The fact that appellee was the beneficiary of the indemnity for loss of life of the insured did not enable her to maintain a suit for the indemnities which were payable to him and which accrued during his lifetime. Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, 111 S. W. 396; Knights of Maccabees of the World v. Patton, 179 Ky. 410, 200 S. W. 614; Martin v. Travelers' Ins. Co. (Mo. App.) 247 S. W. 1024.

Appellant sought to abate the suit on the ground, among others, that plaintiff was not entitled to bring the suit, if there was a cause of action, and that the pleading showed upon its face that appellee had no cause of action. This plea in abatement was not filed in due order, but appeared for the first time in the amended answer. If the question, therefore, is one that could be raised only in abatement, then it has been waived. 1 Tex. Jur. p. 158, § 115. On the other hand, if it is a question which could be urged in bar of appellee's right of recovery, the fact that the plea in abatement was filed would not preclude appellant from relying upon its demurrers and pleas in bar. The original answer contains a general demurrer, which was carried forward in due order of pleading in the amended answer, and the action of the trial court in overruling same is made the basis of an assignment of error. The question for...