Pacific Mut. Life Ins. Co. of California v. Hale
Citation | 267 S.W. 282 |
Decision Date | 13 November 1924 |
Docket Number | (No. 1668.)<SMALL><SUP>*</SUP></SMALL> |
Parties | PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. HALE. |
Court | Court of Appeals of Texas |
Appeal from District Court, El Paso County; P. R. Price, Judge.
Action by Joseph Weatherby Hale against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant appeals. Reversed, and rendered.
Dyer & Morton, of El Paso, for appellant.
W. E. Rogers and C. L. Galloway, both of El Paso, for appellee.
Appellant, a California corporation, issued to the appellee Hale a life, health, and accident insurance policy, dated January 6, 1923. At that time, and prior thereto, Hale was a resident of North Carolina, in which state the appellant was doing business. The policy was delivered to Hale in that state where he continued to reside until his removal to El Paso, Tex., in May, 1923. The policy insured Hale "against disability commencing while this policy is in force and resulting from sickness"; such sickness "to be such as will result in continuous, necessary, and total loss of all business time." The rate of indemnity was fixed at $150 per month during the continuance of such disability, provided that no indemnity should be paid for the first two months of any period of disability.
This suit was brought by Hale in El Paso county upon the policy alleging that on April, 12, 1923, he became disabled from pulmonary tuberculosis and has remained so disabled. Recovery was sought for the monthly payments contracted to be paid excluding the first two months of disability. Recovery was also prayed for interest, attorneys fees, and the penalty as provided by the Statutes of Texas. Plaintiff recovered judgment as prayed for, and the defendant appealed.
It was further pleaded that if the laws of North Carolina did not apply then the contract was governed by the laws of California which were pleaded, and that under the laws of that state the matters above set up avoided the contract.
The court submitted three questions to jury with accompanying instructions as follows:
The above questions were answered in the negative.
At the request of defendant these additional questions were asked:
No. 1 was answered Yes; Nos. 2 and 4 were answered No; No. 3 was not answered, in accordance with the conditional instruction given by the court. The medical examiner's report and the questions therein answered by appellee is dated December 14, 1922.
Appellant presents numerous assignments, but under the view which we have of the case it is necessary to consider only the sixteenth, which complains of the refusal of a peremptory instruction in favor of the defendant, and those which question the sufficiency of the evidence to support the jury's findings.
The validity, interpretation, and obligation of the contract is to be governed by the laws of either North Carolina or California. The laws of Texas apply only as to matters of remedy and procedure.
In cases where the application is made in one state and the same accepted in another, it sometimes is difficult to determine in which state the contract was finally executed but in the state of the pleadings here there is no difficulty of the kind. The plaintiff alleged that the defendant was doing business in North Carolina, and, on January 6, 1923, through its regularly constituted agent at the city of Wilmington in said state, made, executed, and delivered to him the policy in question. The defendant pleaded that the application was taken in North Carolina by its agent in that state, and the policy delivered to plaintiff by said agent in said state after the same had been there countersigned by its agent and the premium then paid. These affirmative allegations of both parties each show that the contract was finally executed in North Carolina, and it is governed by the laws of that state, the policy itself being silent as to the place of performance.
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