Southwestern Life Ins. Co. v. Powers

• Decision Date: 04 January 1939
• Docket Number: No. 2188-7219.,2188-7219.
• Parties: SOUTHWESTERN LIFE INS. CO. v. POWERS.
• Court: Texas Supreme Court

122 S.W.2d 1056

SOUTHWESTERN LIFE INS. CO. v. POWERS.

No. 2188-7219.

Commission of Appeals of Texas, Section A.

January 4, 1939.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Ruth Powers against the Southwestern Life Insurance Company on a policy of life insurance. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 100 S.W.2d 201, and defendant brings error.

Judgment of the trial court and Court of Civil Appeals reversed and cause remanded.

Hamilton, Lipscomb, Wood & Swift, and Dexter Hamilton, all of Dallas, for plaintiff in error.

Butler & Price, of Tyler, and Black, Graves & Stayton, of Austin, for defendant in error.

HICKMAN, Commissioner.

This suit was instituted by defendant in error Ruth Powers against plaintiff in error Southwestern Life Insurance Company upon a policy of life insurance issued by the company upon the life of her brother, Joe M. Powers, in which she was named as beneficiary. In the trial court judgment was rendered in her favor against the company for the face value of the policy ($2500), together with interest, penalty and attorney's fees, less the sum of $209.70, the principal and interest found by the court to have been due on notes executed by the insured, Joe M. Powers, to the company for the third and fourth annual premiums on the policy. The trial court's judgment was affirmed by the Court of Civil Appeals. 100 S.W.2d 201.

The Court of Civil Appeals correctly held that the policy of insurance was not in force and effect at the time of the death of the insured; that it had lapsed for nonpayment of premiums; that the reserve or cash loan value of the policy had been applied and exhausted, and that there was therefore no extended insurance in effect at the time of his death. That Court correctly construed and applied the opinions of this Court in the cases of Texas Life Insurance Company v. Cork, 126 Tex. 627, 89 S.W.2d 779, and Pacific Mutual Life Insurance Company of California v. Thurman, 126 Tex. 363, 89 S.W.2d 202. We approve its holding that under the evidence the policy had lapsed and deem it unnecessary to write further with reference thereto.

Notwithstanding its holding as set out above, the Court of Civil Appeals held that the judgment of the trial court should nevertheless be affirmed, because the insurance company in its answer did not plead as a defense the forfeiture of the policy because of nonpayment of premiums, and to review this latter holding the application for writ of error was granted. In her petition upon which she went to trial Miss Powers alleged: "* * * and up to and at the time of his death, said policy of life insurance was in full force and effect, or at least said policy of insurance was in full force and effect as a contract or policy of extended insurance in the said full sum of $2500.00 * * *."

The answer of the insurance company consisted only of a general demurrer and general denial. The Court of Civil Appeals held that this answer did not put in issue the question of whether the policy had been forfeited for failure to pay premiums. That court further held that, in support of the trial court's judgment, it would be presumed that the trial judge disregarded the evidence offered on that question, because of the want of any special pleading of forfeiture as a defense.

We find it unnecessary, in the state of the record, to decide the question of what issues were joined by the general denial. Under our holding on the question next discussed that becomes an immaterial inquiry.

No objections were made in the trial court to the introduction of evidence on the defense that the policy was not in force as extended insurance. That was the principal fact issue in the trial court, and much evidence was introduced thereon. The record affirmatively discloses that the trial court in entering judgment considered that evidence, for the judgment reduced the amount of recovery which would otherwise have been awarded by...