Rio Grande Nat. Life Ins. Co. v. Bailey

• Decision Date: 18 April 1941
• Docket Number: No. 2131.,2131.
• Citation: 153 S.W.2d 493
• Parties: RIO GRANDE NAT. LIFE INS. CO. v. BAILEY.
• Court: Texas Court of Appeals

Page 493

153 S.W.2d 493

RIO GRANDE NAT. LIFE INS. CO. v. BAILEY.

No. 2131.

Court of Civil Appeals of Texas. Eastland.

April 18, 1941.

Appeal from Taylor County Court; Carl P. Hulsey, Judge.

Action on a life policy by Thelma M. Bailey against the Rio Grande National Life Insurance Company. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded.

Read, Lowrance & Bates, of Dallas, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellee.

GRISSOM, Justice.

Thelma M. Bailey sued the Rio Grande National Life Insurance Company on an insurance policy issued by it on the life of her husband, Claude H. Bailey, deceased. Judgment was rendered on a jury's verdict for plaintiff for $394.96. Defendant has appealed.

The judgment includes $50, found by the jury to be a reasonable attorney's fee, and 12% penalty. In addition to the amount of attorney's fee the jury found (1) that Bailey sustained violent, external, accidental injuries on March 7, 1940; (2) that said injuries were the sole cause of his death, and (4) that the premiums on the policy sued upon had been paid to March 11, 1940.

The policy sued upon provided, in a paragraph headed "Schedule", for payment subject to the terms of the policy, to Thelma M. Bailey, wife of Claude H. Bailey, of $154, stated as being the "amount payable in event of death." Said Schedule further gave the number of the policy, age of the insured as 35, and provided for a weekly premium of 10 cents. The policy was dated January 30, 1939. The second paragraph provided as follows: "Double Indemnity. Upon receipt of satisfactory proof that the Insured, prior to the attainment of age 70, has sustained bodily injury solely through external, violent and accidental means, occurring after the date of this policy and resulting in the death of the Insured within ninety days from the date of such bodily injury, while this policy is in force, and with no premium more than four weeks in arrears, the Company will pay in addition to any other sums due under this policy, a sum equal to the amount of insurance then payable in the event of death according to the above schedule."

The third paragraph referred to "Specific Indemnities" and provided for the payment of a certain percent of the amount payable "in the event of death", for the loss of hands, feet, eyes, etc.

On the second page of the policy, under the heading "Conditions", is found paragraph 6, reading as follows: "If any premium shall not be paid when due, this Policy shall be void except as herein otherwise provided, and it is agreed that this provision shall not be considered in any respect waived by any indulgence granted by the Company in the acceptance of overdue premiums upon this or any other Policy."

Also, on said page, under the heading "Privileges and Concessions to Policy-Holder", is found the further provision: "Grace Period. A grace of four weeks shall be granted for the payment of every premium after the first, during which time the Insurance shall continue in force. If death occur within the days of grace, the overdue premiums shall be deducted from the amount payable hereunder, but neither this concession nor the acceptance of any overdue premiums shall create an obligation on the part of the Company to receive premiums which are in arrears over four weeks."

No other provisions of the policy are pointed out as being, or are considered by us to be, relevant to the questions involved.

Defendant, by its first proposition, contends that since the insurance policy provided it was void and there was no liability if the premiums were more than four weeks in arrears at the time of death of the insured, and since the undisputed evidence, and jury finding, showed the premiums were more than four weeks in arrears at the time of insured's death, the court erred in failing to instruct a verdict for defendant. By its second proposition defendant contends that the policy being unambiguous and expressly providing that if the premiums were more than four weeks in arrears at the time of the death of insured, the policy is void, and the jury having found the premium was more than four weeks in arrears at the time of the death of insured, and the undisputed evidence having so shown, judgment should have been entered for defendant.

In support of said propositions defendant cites, among other authorities, Southland Life Ins. Co. v. Hopkins, Tex.Com. App., 244 S.W. 989; Burns v. American Nat. Ins. Co., Tex.Com.App., 280 S.W. 762; Mrs. Iris Christine Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416; Peoria Life Ins. Co. v. Bergholm, 5 Cir., 50 F.2d 67.

If the provisions "* * * while this policy is in force, and with no premium more than four weeks in arrears" contained in the heretofore quoted provisions relative to Double Indemnity have reference to the time of death of the assured, defendant's contention should be sustained. However, we think said provisions refer to the subject of the paragraph relating to Double Indemnity; that is, to an accidental injury, which injury, of course, under the provisions of said paragraph, must result in death. Burkheiser v. Mutual Acc. Ass'n, 7 Cir., 61 F. 816, 26 L.R.A. 112. However, if we be mistaken in such conclusion, then we are of the opinion the provisions of said paragraph are ambiguous, and applying the well established rules of construction relative to such a provision in an insurance policy, we conclude the provisions of the paragraph under the heading Double indemnity "while this policy is in force and with no premium more than four weeks in arrears" must be construed as having reference to the time of the accidental injury, that later caused the death, rather than to the time of assured's death. Potomac Ins. Co. v. Easley, Tex.Civ.App., 293 S.W. 346, affirmed, Tex.Com.App., 1 S.W.2d 263; E. K. Local Ins. Co. v. Lilly, Tex.Civ.App., 1 S.W.2d 490; Canales v. Uvalde Mut. Aid Ass'n, Tex.Civ.App., 12 S.W.2d 1068; Norwood v. Washington Fidelity Nat. Ins. Co., Tex.Civ.App., 16 S.W.2d 842; Home Ben. Ass'n v. Brown, Tex.Civ.App., 16 S.W.2d 834; Central Texas Mut. Life Ass'n v. Beaty, Tex.Civ.App., 20 S.W.2d 836; Federal Life Ins. Co. v. White, Tex.Civ.App., 23 S.W.2d 832; American Fidelity & Cas. Co. v. Williams, Tex.Civ.App., 34 S.W.2d 396; Business Men's Assur. Ass'n v. Read, Tex.Civ.App., 48 S.W.2d 678; Aird v. Aetna Life Ins. Co., D.C., 27 F.Supp. 141, affirmed, 5 Cir., 108 F.2d 136, 125 A.L.R. 1436; Home Ins. Co. v. Springer, Tex.Civ. App., 131 S.W.2d 412; McCaleb v. Continental Cas. Co., 132 Tex. 65, 116 S.W.2d 679; First Texas Prudential Ins. Co. v. Ryan, 125 Tex. 377, 82 S.W.2d 635; National Life Co. v. McKelvey, 131 Tex. 81 113 S.W.2d 160; General American Life Ins. Co. v. Day, Tex.Civ.App., 89 S.W.2d 1012, modified, 131 Tex. 501, 116 S.W.2d 697; Grand Lodge, etc. v. Adams, Tex. Civ.App., 105 S.W.2d 731, writ dismissed 130 Tex. 360, 107 S.W.2d 355; Ferris v. Southern Underwriters, Tex.Civ.App., 109 S.W.2d 223, writ refused; Southwestern Life Ins. Co. v. Houston, Tex.Civ.App., 121 S.W.2d 619, writ refused. Defendant's first and second propositions are overruled.

Defendant's third proposition is to the effect that there was no evidence of probative force that insured died "from bodily injuries (inflicted) solely through external, violent and accidental means", but that the uncontradicted testimony showed insured died from a malignant tumor and, therefore, the court erred in overruling defendant's motion for judgment. After a careful consideration of the evidence, we conclude the verdict of the jury to the effect that deceased sustained violent, external, accidental injuries on March 7, 1940, which were the sole cause of his death about April 27, 1940, finds support in the evidence. Supreme Forest, etc. v. Garcia, Tex.Civ.App., 124 S.W.2d 951; Heckert v. American Cas. Co., Tex. Civ.App., 129 S.W.2d 424.

In answer to questions elicited by her counsel, plaintiff testified that at the time deceased was operated Dr. Bailey told her deceased did not have a cancer. Such testimony was objected to as hearsay. Defendant contends such action constitutes reversible error; that it was hearsay and inadmissible and no predicate had been laid for impeaching the testimony of Dr. Bailey. Dr. Bailey had testified as to his treatment of the insured. No question had been asked him with reference to the matters testified to by plaintiff. We understand the well established rule to be that impeaching testimony, with certain exceptions not here applicable, is inadmissible in the absence of a predicate laid for its introduction. Soria v. American Nat. Ins. Co., Tex.Civ.App., 57 S.W.2d 321, writ refused; Booth v. Crosby, Tex.Civ.App., 248 S.W....