Prudential Ins. Co. of America v. Tate, 7231

• Decision Date: 10 January 1961
• Docket Number: No. 7231,7231
• Citation: 344 S.W.2d 254
• Parties: PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Millard C. TATE, Appellee.
• Court: Texas Court of Appeals

Page 254

344 S.W.2d 254

PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Millard C. TATE, Appellee.

No. 7231.

Court of Civil Appeals of Texas, Texarkana.

Jan. 10, 1961.

Rehearing Denied Jan. 24, 1961.

C. C. Renfro, Renfro & Johnson, Dallas, for appellant.

Alvin Boyd, Clint Barham, Dallas, for appellee.

DAVIS, Justice.

Plaintiff-appellee, Millard C. Tate, sued defendant-appellant, on a policy of insurance for total and permanent disability. The policy was issued on February 25, 1928. The insurance policy relative to total and permanent disability contained the following provisions:

'Disability Before Age 60: Waiver of Premeiums--Payment of Insurance in Monthly Installments.--If the Insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium on this Policy, while this Policy is in full force and effect and the Insured is less than sixty years of age, and before any non-forfeiture provision shall become operative, the Company, upon receipt of due proof of such disability, will grant the following benefits:

'(1) * * *

'(2) Payment of Insurance in Monthly Installments.--The Company will, in addition to waiving the premiums, pay to the Insured at its Home Office the amount insured, less any indebtedness under this Policy, in one hundred and twenty monthly instalments during ten years, each instalment to be of the amount of $9.74 per $1,000 of insurance payable. The first of such monthly instalments shall be paid immediately upon receipt by the Company of due proof of such disability and subsequent monthly instalments shall be paid on the first day of each month thereafter.'

The appellee became 60 years of age on August 27, 1955. He did not know about the provisions for total and permanent disability in the policy until the month of May, 1957. When he discovered the provision for total disability benefits he called the Insurance Comapny in Dallas, and they sent an adjuster to his house with the necessary forms to file his proof of loss. The adjuster left the forms for him to sign, and one for him to get a doctor to sign. Appellee filled out the form they left for him to file and mailed it to the appellant. He carried the other form to a doctor who filled it out and mailed it to the appellant, according to the testimony of the appellee, who said that the appellant admitted receiving both forms.

Trial of this case was to a jury, and the jury found that the appellee became totally and physically disabled prior to August 27, 1955; that the disability was permanent; that the appellant was furnished proof of his being totally disabled, and that such proof was furnished to the appellant more than 30 days prior to November 22, 1957, the date the suit was filed. Judgment was entered by the trial court for the appellee. The appellant has perfected its appeal and brings forward four points of error.

Prior to the trial of the case the appellant and appellee entered into a stipulation that the policy of insurnace sued upon herein was still in full force on April 4, 1958; that appellee became 60 years of age on August 27, 1955; appellee first gave notice to appellant on May 20, 1957 that he was...