Mid-Continent Life Ins. Co. v. Hubbard, 8487.
| Decision Date | 05 November 1930 |
| Docket Number | No. 8487.,8487. |
| Parties | MID-CONTINENT LIFE INS. CO. v. HUBBARD. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; F. Stevens, Judge.
Action by G. B. Hubbard, administrator of the estate of Claude Dowel Hubbard, deceased, against the Mid-Continent Life Insurance Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Hicks, Hicks, Dickson & Bobbitt and Fred H. Sims, all of San Antonio, and Rittenhouse, Lee, Webster & Rittenhouse, of Oklahoma City, Okl., for appellant.
Spencer, Rogers & Lewis and L. L. Morrison, all of San Antonio, for appellee.
On January 13, 1927, appellant life insurance company issued its policy upon the life of Claude Dowel Hubbard, who paid the first annual premium thereon at the time. The second annual premium was due and payable on January 13, 1928, subject to the usual 31 days' grace, at the expiration of which, under the terms of the contract, said premium became due, absolutely, and it was provided that in case of default in such payment on or before the expiration of said grace period the policy should lapse. During said period, however, on February 6, 1928, in consideration of a small cash deposit, and the execution and delivery to the company of his promissory note (designated in insurance parlance as a "blue note") payable on May 13, 1928, Hubbard obtained an extension of the premium obligation until said date. Before the maturity of the note, on February 15, Hubbard became totally and permanently disabled, and as a result of the disability died on May 27, of the same year. In contemplation of this sort of contingency, it was provided in the insurance contract that:
Upon the refusal of the company to pay the amount of the policy after insured's death, appellee, G. B. Hubbard, as administrator of the insured's estate, brought this action upon the policy and to recover judgment for principal and penalties provided for in the policy.
Appellant contested the suit, alleging, as stated in its brief:
"(1) that the policy automatically ceased to be a claim against it on May 13, 1928, claiming that the same had lapsed and terminated on said day because of the non-payment of premium, (2) denying the total disability of the insured, (3) denying that the insured was relieved of furnishing proof of disability, (4) alleging that the waiver of premium payment provided for in the policy was a premium commencing with the anniversary of the policy next succeeding the receipt of proof of disability, which in this case would be the premium due January 13, 1929, and (5) offered to return the blue note for cancellation and requested the return of the insurance policy for cancellation."
It is conceded that the insured was in default upon his blue note at the time of his death, but payment thereof was tendered by appellee upon the trial of the cause.
It is also conceded that insured did not give appellant notice of his disability, but shortly after his death such notice was given by appellee. The trial court found that insured's failure to make proof of his disability was due to his incapacity to do so, and that this fact relieved him of that obligation.
As has been seen, it was stipulated in the policy that after payment of the first annual premium and before default in the payment of any subsequent premium, if the insured should furnish the company with due proof that he has since such (first) payment become wholly disabled, then "commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will, on each anniversary, waive payment of the premium for the ensuing insurance year." It is conceded that insured had paid the "first annual premium," wherefore that condition in said stipulation had been met. Nor was insured in "default in the payment of any subsequent premium" at the time his disability arose, since the company had agreed to extend the time of payment of the renewal premium to a date beyond that time. So, that condition of the waiver clause was also met. The next condition, that the insured should furnish the company with due proof that he had since such first payment become disabled, was not met, literally. This default was due to insured's disabled condition, and the trial court properly held that this contingency excused him from performing that condition. Ins. Co. v. Le Fevre (Tex. Civ....
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