Old Line Mut. Life Ins. Co. v. Tilger

• Decision Date: 30 December 1953
• Docket Number: No. 4985,4985
• Citation: 264 S.W.2d 557
• Parties: OLD LINE MUT. LIFE INS. CO. v. TILGER.
• Court: Texas Court of Appeals

Page 557

264 S.W.2d 557

OLD LINE MUT. LIFE INS. CO. v. TILGER.

No. 4985.

Court of Civil Appeals of Texas, El Paso.

Dec. 30, 1953.

Rehearing Denied Jan. 27, 1954.

H. L. Adkison, Dallas, for appellant.

Gullett & Gullett, Robert L. Doss, Denison, for appellee.

McGILL, Justice.

This was a suit to recover hospital and surgical benefits under an insurance policy. Appellee was plaintiff and appellant defendant in the trial court. Trial was to a jury. On answers to special issues the court rendered judgment for $320, the amount of such benefits, and 12% thereof as statutory penalty, and $250 as attorneys fees, in favor of plaintiff against defendant. Plaintiff alleged the issuance of the policy to his wife on April 25, 1951 by defendant; the coverage therein provided; that his wife was hospitalized on March 4, 1952 through March 29, 1952, and itemized the expenses incurred to which he was entitled under the terms of the policy; that he had made demand therefor but defendant without just cause had denied liability and refused payment; that more than thirty days had elapsed since he made such demand and defendant had refused payment. He sought to recover the amount of such expenses, $320, and 12% thereof as statutory penalty, or $452, and reasonable attorneys fees in the sum of $250.

The defendant answered by general denial, and specially denied that plaintiff was entitled to any attorneys fees or the 12% penalty, and alleged that under the terms of the policy of insurance issued by defendant, among other limitations and exclusions contained in the policy was the following:

'This policy does not cover any loss for disability resulting wholly or partly in or from (J) diseases not common to both sexes, unless the cause thereof originated after this policy has been in continuous force for the preceding ten months.'

That the disability of Mrs. Tilger was the result of a disease not common to both sexes and that the cause thereof originated prior to the time said insurance policy had been in force for ten months, and prayed that plaintiff take nothing.

The jury found (1) that Mrs. Tilger became sick after February 24, 1952; (2) that the defendant refused plaintiff's demand for payment without just cause; (3) that reasonable compensation for services rendered by plaintiff's attorney was $250; and (4) they failed to find from a preponderance of the evidence that the cause of the sickness of plaintiff's wife, Mrs. Hubert M. Tilger, which resulted in medical care, originated or existed prior to February 24, 1952.

Appellant has presented six points. The first is that the Court should have granted defendant's motion for a verdict at the close of plaintiff's testimony because the plaintiff had not proved that he had a cause of action, and the second that the court should have granted defendant's motion for a verdict non obstante veredicto because the plaintiff failed to prove that he had a cause of action and the verdict is contrary to the evidence in that the undisputed evidence shows that the plaintiff's wife's illness originated prior to February 24, 1952. The controversy raised by these points narrows to the question of on whom was the burden of proof to establish (J) of the limitations and exclusions contained in the policy above stated. We have concluded that the burden of proof was upon the defendant to establish the facts which would have relieved it of liability under this section of the limitations and exclusions. The defendant pled this exception and relied on it to defeat liability. This was defeasance, or excuse to avoid the insured's loss by 'sickness the cause of which originates after the date of this policy', which the insurer promised to pay. It comes within the rule of Hutcherson v. Sovereign Camp, W. O. W., 112 Tex. 551, 251 S.W. 491 and similar cases, rather than Travelers' Ins. Co. v. Harris, Tex.Com.App., 212 S.W. 933, and like cases. See 24 Tex.Jur. pp 1246, 7, 8 Sec. 388; and Cyclopedia of Ins., Cough, Vol. 8, pp. 7168, 9, 70, Sec. 2217.

The insurer's promise was to pay the loss incurred by the insured as hospital expenses and surgical service, in conformity with the 'Schedule of Coverages' contained in the policy, by reason of 'Sickness the cause of which originates after the date of this policy'. Under this promise, which plaintiff proved when he introduced the policy he established a cause of action when he proved that his wife was hospitalized because of sickness which originated after the date of the policy, the amount of hospital expenses and surgical indemnities specified in the 'Schedule of Coverages', the demand for payment thereof and the insurer's denial of liability. (J) under 'Limitations and Exclusions' took nothing from the general portion of the contract so that the promise to perform was only what remained. It was a stipulation added to the principal contract to avoid the promise therein contained.

The jury found (1) that plaintiff's wife, Mrs. Tilger, became sick after February 24, 1952, and (4) they failed to find that the sickness of plaintiff's wife originated or existed prior to February 24, 1952. These findings eliminated (J) of 'Limitations and Exclusions' contained in the policy. Appellant contends that there was no evidence to support the finding that the cause of plaintiff's wife's illness had wholly originated after February 24, 1952. It will be observed that there was no such finding-the jury by its answer to special issue No. 4, merely failed to find from a preponderance of the evidence that such sickness did originate prior to February 24, 1952. As we have held, the burden was on appellant to prove that it did so originate in...