Metropolitan Life Ins. Co. v. Wann

• Citation: 81 S.W.2d 298
• Decision Date: 25 January 1935
• Docket Number: No. 12947.,12947.
• Parties: METROPOLITAN LIFE INS. CO. v. WANN.
• Court: Court of Appeals of Texas

81 S.W.2d 298

METROPOLITAN LIFE INS. CO. v. WANN.

No. 12947.

Court of Civil Appeals of Texas. Fort Worth.

January 25, 1935.

Rehearing Denied February 22, 1935.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Suit by William Charles Wann against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Vinson, Elkins, Sweeton & Weems and Fred R. Switzer, all of Houston, for appellant.

McLean, Scott & Sayers, of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

This suit was instituted by William Charles Wann against the Metropolitan Life Insurance Company to recover on a certificate of insurance issued to him by the defendant, and from a judgment in his favor the insurance company has perfected this appeal.

A former appeal in the same case was finally disposed of by the Commission of Appeals as reported in 41 S.W.(2d) 50. The certificate of insurance made the basis of the plaintiff's suit is set out in full in the opinion in that case. In the original certificate issued, and also in the second certificate on which the suit was instituted, there is a recital that the same was issued subject to and under the conditions of group policy No. 2000-G, which the Commission of Appeals held to constitute a part of the contract on which the suit was based, and the judgment in favor of plaintiff was reversed because of his failure to allege and prove the provisions of that group policy.

After that decision was handed down plaintiff filed a second amended original petition alleging the issuance of the group policy and that the certificate was issued in conformity therewith, further alleging that the group policy was in possession of the defendant who was given notice to produce the same upon the trial of the case. When the case was tried a copy of the group policy was introduced. It was a policy issued by the defendant to the Southern Pacific Lines of railroad in Texas and Louisiana and provides for insurance in favor of employees of the lines and stipulates the amount of insurance in their favor. Among others, that policy includes the following provisions:

"The company will issue to the Employer for delivery to each Employee insured hereunder an individual certificate showing the insurance protection to which such Employee is entitled, the beneficiary to whom payable, together with a statement that in case of the termination of the employment with the Employer, for any cause whatsoever, such Employee shall be entitled to have issued to him by the Company, without evidence of insurability, and upon application to the Company within thirty-one days after such termination of employment and upon payment of the premium then applicable to the class of risk to which he belongs and to the form and amount of the policy at his attained age (nearest birthday), a policy of life insurance in any of the forms customarily issued by the Company, except Term Insurance, in an amount equal to the amount of his protection under this Policy at the time of termination. * * *"

Then follow provisions for the payment to the employee of weekly installments over a period of one year while the employee is alive or for the payment to the administrators or executors of his estate of an amount to be arrived at by a computation stated.

"Upon receipt at the Home Office in the City of New York, of due proof that any Employee, not working in Mexico, while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled, as the result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the Company will, in lieu of the payment at death of the insurance on the life of the said Employee, as herein provided, pay equal monthly instalments as hereinafter described to the said Employee, or to a person designated by him for the purpose, or if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record of the said Employee."

In his petition plaintiff alleged that on or about the 28th day of September, 1926, he sustained an injury to his left hand, wrist, and arm, and as the direct result of said injury he has been wholly prevented from performing any work or labor for compensation or profit, and has been totally and permanently disabled, and was permanently, continuously, and wholly prevented from the performance of work for compensation or profit. He further alleged in his petition that he had paid all dues owing by him upon the certificate sued on and had furnished and provided the defendant with proof of his disability in accordance with the terms of the contract of insurance; that he had made demand of the defendant for the payment of insurance due him in accordance with the terms of its contract of insurance with him, which demand had been refused, and by reason of such refusal he sought a judgment for the amount of the insurance stipulated in the certificate plus the 12 per cent. statutory penalty and attorney's fees allowed by the provisions of article 4736 of the Revised Civil Statutes of Texas, as amended by Acts 1931, c. 91, § 1 (Vernon's Ann. Civ. St. art. 4736); and he recovered judgment for the amount so claimed.

It is clear that the certificate of insurance upon which plaintiff based his suit was issued in compliance with the very terms of the group policy quoted above, and that the two contracts construed as parts of the whole gave plaintiff the right of indemnity provided for in the certificate of insurance issued to him.

Following were special issues submitted to the jury, with their findings thereon:

"1. Do you find from a preponderance of the evidence in the case that the plaintiff, William Charles Wann, received any bodily injury on September 28, 1926, while performing his duties as an employee of one of the Southern Pacific Lines in Texas? Answer: Yes.

"By the term `bodily injury' as used in this charge means damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom.

"If you have answered question No. 1 in the negative, you need not answer this question, but if you have answered the same in the affirmative, then answer the following question:

"2. Do you find from a preponderance of the evidence that the plaintiffs injury, if any, was such that he was thereby, from the date of said injury, permanently, continuously and wholly prevented from substantially engaging in any occupation?

"Answer `yes' or `no.' Answer: Yes.

"3. Do you find from a preponderance of the evidence that plaintiff's injury, if any, was such that he was thereby from the date of said injury, permanently, continuously and wholly prevented from substantially performing any work for compensation or profit?

"Answer `yes' or `no.' Answer: Yes.

"By the term `substantially,' as used in the two preceding questions, is meant `in a substantial sense or manner; actually; really.'

"If you have answered questions No. 2 and 3, or either of them, in the negative, you need not answer this question, but if you have answered the same in the affirmative, then answer:

"4. What do you find from a preponderance of the evidence is a reasonable cash attorney's fee, if any, for the service of plaintiff's attorneys in the preparation and trial of this case in the District Court?

"Answer in dollars and cents. Answer: $500.00."

Appellant insists that the evidence introduced was insufficient to support the jury's findings that by reason of his injury and from the date of its occurrence the plaintiff was permanently, continuously, and wholly prevented from performing any work for compensation or profit, and that therefore the court erred in refusing its request for a directed verdict in its favor. Testimony given by the plaintiff himself is quoted in appellant's brief which it is claimed refuted those findings of the jury. According to that testimony, following the injury he did some work on a farm, worked for a short time as news butcher on a train, assisted his wife in running a little lunch and drink stand, peddled peanuts, and other odd jobs of the same character. But according to his further testimony he attended school up to the fourth grade, then went to work for the railroad at the age of fourteen, at which he has continued ever since, and is not qualified to follow any other occupation. He further testified that he had pains all the way from his wrist bone up to the muscles in his elbow, which continued all the time; that he couldn't work as a news butcher because of the strain on his nerves and the pain he suffered; that he had pains when...