Missouri State Life Ins. Co. v. Le Fevre

Decision Date04 October 1928
Docket Number(No. 696.)
Citation10 S.W.2d 267
CourtTexas Court of Appeals

Appeal from District Court, Hill County; Walter M. Wray, Judge.

Suit by Mrs. Aline M. Le Fevre against the Missouri State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Phillips, Townsend & Phillips and Tom Scurry, all of Dallas, Collins & Dupree, of Hillsboro, and Allen May, of St. Louis, Mo., for appellant.

Frazier & Averitte, of Hillsboro, for appellee.


Appellee, a widow, filed this suit against appellant to recover upon a life insurance policy on the life of her son, W. H. Le Fevre, in the sum of $2,500, together with interest, penalties, and attorney's fees. Appellant answered by general demurrer, special exceptions, general denial, and that the policy had lapsed by reason of non-payment of premium due March 8, 1927, prior to the death of the assured June 6, 1927. In response to special issues the jury found:

(1) That the insured was in good health when the policy was delivered to him.

(2) That the insured was totally incapacitated by bodily infirmities from following or pursuing any gainful employment from February 20, 1927, to the date of his death.

(3) That the insured was in good health on May 21, 1926, when his application was made.

(4) That the assured, in his answer to the question concerning past treatment and disease, did not make any false statement as to a material matter.

(5) The insured did not, by his answer to question No. 13 in the application concerning good or bad health, make any false statement as to a matter or thing which contributed to his death.

(6) That the insured did not have Hodgkin's disease when the policy of insurance was delivered to and accepted by him.

On these findings and such additional findings as the record warranted, the court entered judgment for appellee for $3,633.33. Appellant has duly appealed and presents the record here for review.

Under its first proposition, appellant contends, in effect, that the court erred in refusing to instruct a verdict in its favor, because under the terms of the policy the failure of the insured to furnish proof of total and permanent disability, before his premium was in default, terminated the policy. Under its second proposition, appellant contends, in effect, the court erred in overruling its special exception to appellee's petition, as the petition disclosed the necessity of proof being made to appellant of total and permanent disability as a condition precedent to the waiver of premiums, and the petition failed to allege the furnishing of such proof, and therefore appellee failed to state facts showing his right to disability benefits, and so failed to state a cause of action. The policy sued upon contained the following provisions:

"Total and Permanent Disability: The Company will also waive the payment of further premiums if the insured becomes totally and permanently disabled before the age of 60, subject to all the terms and conditions on the following page."

On the second page of the policy appears the following:

"Disability, Total and Permanent Disability Benefits, Benefits Effective: Disability Benefits as provided on page 1 will be effective only upon receipt at the Company's home office while no premium is in default, of due proof of existing total and permanent disability as hereinafter defined, providing such disability originated after this policy became effective and before its anniversary on which the insured's age at nearest birthday is 60 years, and will apply only to premiums falling due after receipt of such proof."

"Total and Permanent: Disability will be deemed to be total whenever the insured is so incapacitated by bodily injury or disease as to be wholly prevented thereby from engaging in any gainful occupation whatsoever. Disability will be considered total and permanent under this contract, (a) whenever the insured will presumably be so totally disabled for life, or (b) whenever the insured has been so totally disabled for not less than three consecutive months immediately preceding receipt of proofs thereof. The entire and irrecoverable loss of the sight of both eyes, or the use of both hands, or of both feet, or of one hand and one foot, will of themselves constitute total and permanent disability."

The policy recites further:

"General: Premiums waived will not be deducted in any settlement under this policy."

And further:

"Disability Premium: The annual premium for the Total and Permanent Disability benefit is $.73 and is included in the premium stated in the consideration clause."


"Premium Payments, Grace: A grace period of 31 days will be granted for payment of every premium after the first, during which this policy will continue in force. If death occurs during the period of grace, such unpaid premium will be deducted from the amount payable hereunder. If any premium is not actually paid when due, this policy shall cease and determine, except as herein expressly provided."

The assured was 33 years of age. In addition to the premium of $14.65 paid on the delivery of the policy to the assured on August 10, 1926, the quarterly premiums for a like amount, maturing September 8 and December 8, 1926, were likewise paid in advance. The last quarterly payment, maturing March 8, 1927, which payment by the 31 days of grace was postponed to April 8, 1927, was not paid by the assured or his mother, the beneficiary herein; but the assured on February 20, 1927, became totally disabled by an attack of typhoid fever and continued from day to day to grow worse, having very high fever. From about March 16, 1927, to the time of his death, June 6, 1927, he was a very sick man, having a doctor and also a day nurse and night nurse in constant attendance. There is no question but that the three quarterly payments made by the assured, together with the 31 days of grace allowed for the last payment, were sufficient to keep the policy in force until April 8, 1927. There is no question but that the assured on February 20, 1927, became totally and permanently disabled, and under his disability contract with appellant was entitled to be relieved of the payment of the last quarterly payment, if he had furnished proof of such disability at any time prior to April 8, 1927. Appellant contends the making of such proof was essential to his being so relieved, and as it was not made, the policy ceased to exist April 8, 1927. Appellee contends that under the facts of this case, the making of such proof was impossible, and therefore all that was required was to furnish the same within a reasonable time after it could be made. That the assured was actually totally and permanently disabled from February 20, 1927, to the date of his death, June 6, 1927, cannot be doubted, but no one could know in advance that his disability was permanent until his death, and proof of his total and permanent disability, under the provisions for such proof, could, in no event, have been made until such disability had continued for three consecutive months from February 20, 1927, or until May 20, 1927, after the policy had lapsed, according to appellant's contention, on April 8, 1927. So such proof, if appellant's contention be correct, would have been futile at such time. Furthermore, it would have been impossible for the assured in his then condition to make such proof, and unnatural, unreasonable, and unthinkable for his mother or other relatives, whose time was fully occupied in their efforts to save his life, to turn aside and busy themselves with the matter of making such proof, if they could have done so at all, on the assumption that he was going to die. His mother did on June 23, 1927, after his death on June 6, 1927, notify appellant, and request blanks to be used in making proper proofs. In this case the appellant had in reality made two contracts with the assured, each supported by a separate and valuable consideration, one of which was the contract insuring the life of the assured in the sum of $2,500 for stated premiums paid and to be paid; and the other was, for an additional definite consideration expressed in the policy and paid in advance, to relieve the assured of the payment of further premiums in case he became totally and permanently disabled. This made the contract for life insurance doubly sure, and very attractive, especially to laboring people dependent upon their ability to labor; for as long as they were able to work they could pay premiums, and if they became disabled, the company, in effect, agreed to pay for them. Appellant in its disability contract designates its obligation as the "waiver" of the payment of premiums, but it is thought this is a misnomer of the term "waiver." A "waiver" is the giving up, relinquishment, or surrender of some known right, and takes place where a man dispenses with the performance of something which he has a right to exact. 40 Cyc. pp. 252, 253. The contract for the disability benefit recites:

"The annual premiums for the Total and permanent Disability benefits is 73 cents and is included in the premium stated in the consideration clause."

Said contract also recites:

"Premiums waived will not be deducted in any settlement under this policy."

The effect of appellant's obligation to the assured, upon a sufficient consideration, was, if he became totally and permanently disabled, to allow him a sick benefit to the amount of the premiums thereafter accruing, and in lieu of paying same to the assured, to apply same to the premiums accruing on his life insurance. The evident purpose of the disability provision was to preserve the insurance in the event the insured, on account of disability, became unable to make the money to pay the premiums, and said provision should be construed so as to effectuate this intention. So, where the insured...

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