State Life Ins. Co. v. Fann

• Decision Date: 25 February 1925
• Docket Number: (No. 2435.)
• Citation: 269 S.W. 1111
• Parties: STATE LIFE INS. CO. v. FANN.
• Court: Texas Court of Appeals

Page 1111

269 S.W. 1111

STATE LIFE INS. CO. v. FANN.

(No. 2435.)

Court of Civil Appeals of Texas. Amarillo.

February 25, 1925.

Rehearing Denied March 11, 1925.

Appeal from District Court, Lubbock County; Parke N. Dalton, Special Judge.

Action by Virginia Akers Fann against the State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robt. H. Bean and Bean & Klett, all of Lubbock, for appellant.

Vickers & Campbell, of Lubbock, for appellee.

RANDOLPH, J.

This suit was filed by Mrs. Fann, as plaintiff, against the State Life Insurance Company, as defendant, upon a life insurance policy issued by defendant upon the life of Marvin Price Fann. Judgment in the trial court was rendered for plaintiff, and from this judgment appeal is taken to this court.

The following statement is taken from appellant's brief:

"This appeal is based on the principal contention that the life insurance policy sued on was forfeited for nonpayment of one of the premium notes.

"Suit was filed by Virginia Akers Fann, beneficiary, against the State Life Insurance Company of Indianapolis, Ind., upon a life insurance policy issued upon the life of her husband, Marvin Price Fann, the plaintiff alleging that the policy was issued December 20, 1920, for the sum of $2,000, in consideration of the sum of $84.02 paid in advance on delivery of the policy, `and of the payment of a like sum on or before the 20th day of December in each year' thereafter; that `said policy provided that if the insured became wholly and permanently disabled by bodily injury or disease so that he is and will be permanently, continuously, and wholly prevented thereby from performing any work for compensation or profit or from following any gainful occupation, the company would waive the payment of premiums thereafter becoming due'; that the insured died November 6, 1923, at Norman, Okl.; that on April 1, 1922, he was suffering with a mental disability that prevented him from performing work for profit or compensation; that the company refused to pay after notice given; and that the insured had employed attorneys and was entitled to recover $2,000 principal, 12 per cent. penalty and $750 attorney's fees.

"The defendant filed the usual general demurrer and general denial, and especially alleged that the policy was issued in consideration of the payment of annual premium in advance on or before the 20th day of December of each year, `whereby the continued validity of said policy on and after December 20th, 1921, was conditioned upon the payment of said premium on or before said date; and that on or about said date the insured and the defendant mutually entered into a written contract wherein and whereby the defendant accepted $9.02 in cash and three notes for the sum of $25 each, due 2, 4, and 6 months thereafter, respectively, with the absolute agreement and upon the express agreement that none of said notes was given or accepted as payment of premium due December 20, 1921, but "that the nonpayment of any of said notes or any extension thereof at maturity shall ipso facto lapse said policy," and that such nonpayment of any of said notes at maturity would ipso facto terminate all rights under said policy; that the note aforesaid due June 20, 1922, was never paid, and that said policy aforesaid and all rights thereunder terminated on the nonpayment of said note due June 20, 1922.'

"As a further defense, the company alleged that in keeping with the forfeiture of said policy and the termination of all rights thereunder, the company notified the insured on or about August 23, 1922, that said policy had lapsed on account of nonpayment of the note due June 20, 1922, and a check for $17.01 covering the unearned part of the payment made on the premium notes was forwarded to the insured and cashed by him in August of the year 1922, whereby all rights of the insured and of the plaintiff were forfeited, rescinded, and canceled.

"By way of confession and avoidance, defendant alleged that if there was a disability, as claimed by plaintiff, the company had no notice thereof, as required by the policy, but, on the contrary, the insured and the beneficiary both certified and represented to the company on or about July 6, 1922, that the insured was then `in good health and free from every ailment and complaint.' and then and therein declared that the insured...