Pacific Mut. Ins. Co. v. Talbert

• Citation: 271 S.W.2d 487
• Decision Date: 24 June 1954
• Docket Number: No. 4982,4982
• Parties: PACIFIC MUTUAL INSURANCE COMPANY, Appellant, v. H. L. TALBERT, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 487

271 S.W.2d 487

PACIFIC MUTUAL INSURANCE COMPANY, Appellant, v. H. L. TALBERT, Appellee.

No. 4982.

Court of Civil Appeals of Texas, Beaumont.

June 24, 1954.

Motion for Rehearing Overruled Sept. 29, 1954.

Orgain, Bell & Tucker, Beaumont, for appellant.

D. H. O'Fiel, Beaumont, for appellee.

ANDERSON, Justice.

The basis of this suit is a Group Medical Expense Insurance Policy and a certificate of insurance issued thereunder by the appellant, Pacific Mutual Insurance Company. The appellee, H. L. Talbert, to whom the certificate was issued, sued on the group policy and the certificate to recover hospital, surgical, and medical expense incurred by him as a result of his wife's having undergone an operation on or about May 5, 1953. The appellant answered by general denial and a plea that, under the terms of the certificate declared upon, appellee's insurance terminated on April 15, 1953, at which time appellee ceased to be an employee of Kinsel Motors, Inc. The appellee undertook to establish that on April 15, 1953, at which time the insurance would have otherwise terminated, his wife was wholly disabled, and that therefore the insurance remained in effect under the following provision of the certificate and the group policy: 'If the Employee's insurance with respect to a dependent terminates while the dependent is wholly disabled, the Employee's insurance with respect to such dependent will be extended, without payment of premiums, during such disability, but not beyond the period ending three months after such termination; provided, however, that this paragraph shall not be construed so as to extend insurance with respect to a dependent on account of pregnancy or resulting childbirth or miscarriage.'

The case was tried to a jury, and, aside from a issue pertaining to a reasonable fee for appellee's attorney, the following were the only issues submitted:

'Special Issue No. 1: From a preponderance of the evidence, do you find that the plaintiff's wife, Mrs. Eugenia Harriet Talbert, was wholly disabled under date of April 15, 1953?

'Answer 'yes' or 'no'.

'If you have answered Special Issue No. 1 'yes', and only in such event, then answer the following:

'From a preponderance of the evidence, do you find that such disability if any you have so found, continued over a period commencing April 15, 1953 and terminating May 5, 1953?

'Answer 'yes' or 'no'.'

The jury answered both special issues in the affirmative, and, the parties having stipulated as to the hospital, surgical and medical expense involved, the trial court rendered judgment for the appellee for such expense together with the statutory penalty and the attorney's fee fixed by the jury, an aggregate of $428.88.

The appellant has duly perfected its appeal, and by its first point assigns as error the action of the trial court in overruling its motion for judgment non obstante veredicto.

This motion set up that the certificate of insurance which was introduced in evidence by appellee did not purport to be the entire contract of insurance declared upon, but on its face showed that it was issued 'under and subject to the terms' of enumerated group policies which constituted a part of the contract; that no evidence to prove the contents and provisions of the group policies had been introduced during the trial of the case; that if any evidence tending to establish the contents of the group policies had been introduced during the trial, it was of a secondary nature, for the introduction of which no proper predicate had been laid, and should be disregarded; and that in the absence of legal proof of the contents of the group policies the appellee was not entitled to recover.

We agree with appellants' contention that the certificate of insurance which was introduced in evidence was not the entire contract of insurance declared upon and that the group policies constituted a part of the contract, and it is true that the group policies referred to in the certificate were not introduced in evidence and their full contents were not proven upon the trial, but we are unable to agree that in this instance insufficient proof was made of the contract declared upon, or that such proof was not made by legal and competent evidence. We are of the opinion, on the contrary, that the certificate of insurance itself, which was issued by the appellant itself to the appellee, furnished all the proof of the full contract that was necessary to support the trial court's judgment.

The certificate consists of some eight pages of printed matter, and contains every commitment on the part of the insurance company that is essential to appellee's cause of action. Not only is this so, but the commitments and provisions of the certificate are represented by it to be also commitments and provisions of the group policies. The certificate commences as follows: 'Pacific Mutual Life Insurance Company, Los Angeles, California By a Group Disability Insurance Policy No. GA-1631, and by a Group Medical Expense Insurance Policy No. GH-1631, contracts between the Insurance Company and the Trustees of the Insurance Fund of Texas Automotive Dealers Association, has insured certain Employees of Employers subscribing to said Trust. Certain terms of the group policies are described on this and the following pages of this certificate. Under and subject to the terms of the group policies, H. L. Talbert, an Employee of a Subscribing Employer, is insured for the following benefits:' (Emphasis supplied.) Then, under the captions, 'Group Disability Policy Provisions, Insurance with respect to the Employee,' 'Group Medical Expense Policy Provisions, Insurance with respect to the Employee,' 'Insurance with respect to Dependents of the Employee,' 'Group Medical Expense Policy Provisions, Insurance with respect to Dependents of the Employee,' and 'Provisions relating to both Group Policies,' there follow six pages of detailed provisions with reference to the benefits payable under the certificate and the group policies, the conditions under which such benefits are payable, proof of loss, termination of the insurance, and other kindred subjects. Whether these provisions of the certificate be considered as verbatim copies of the corresponding provisions of the group policies, or merely as adaptations thereof, they must nevertheless be accepted as the appellant's own representation and admission that in substance and effect the same provisions are contained in the group policies.

The certificate was primary and not secondary evidence of the contents of the group policies and of the entire contract, because it is an integral and indivisible part of the entire contract. In support of the latter statement, see Wann v. Metropolitan Life Ins. Co., Tex.Com.App., 41 S.W.2d 50; Metropolitan Life Ins. Co. v. Worton, Tex.Civ.App., 70 S.W.2d 216, writ refused; Metropolitan Life Ins. Co. v. Barela, Tex.Civ.App., 44 S.W.2d 494. And, as we have already stated, all of the provisions of the group policy essential to appellee's cause of action were reflected by the certificate.

It was not necessary that appellee either plead or prove more of the entire contract than was essential to show appellant's liability on the facts relied upon and proved by appellee. See Ramsey v. Wahl, Tex.Com.App., 235 S.W. 838; Northwestern Mut. Life Ins. Co. v. Freeman, 19 Tex.Civ.App. 632, 47 S.W. 1025, writ refused; Automobile Ins. Co. v. Bridges, Tex.Civ.App., 5 S.W.2d 244; Kottwitz v. Bagby, 16 Tex. 656; Southern Travelers' Ass'n v. Shattuck, Tex.Civ.App., 2 S.W.2d 568, writ refused. Nor do we think that in Wann v. Metropolitan Life Ins. Co., supra, 41 S.W.2d 50, 52, the case which is primarily relied upon by appellant, the Commission of Appeals held or intended to hold that more was necessary. What the court there had in mind is exemplified by the following portion of the opinion: 'In order for plaintiff in error to set up a cause of action under the terms of the certificate, it was incumbent upon him to allege and prove that the provisions of the group policy, when construed in connection with the certificate and rider, entitled him to recover for the disability resulting from the injuries sustained in the service of his employer.' In other words, it was necessary for the insured to prove that on the entire contract he had a cause of action. The certificate did not in that instance purport to contain the provisions of the group policy, and there was a total absence of any proof of the terms of the group policy. The court merely held that the plaintiff had...