Universal Life & Accident Ins. Co. v. Sanders

• Decision Date: 10 March 1937
• Docket Number: No. 2051 - 6836.,2051 - 6836.
• Citation: 102 S.W.2d 405
• Parties: UNIVERSAL LIFE & ACCIDENT INS. CO. v. SANDERS.
• Court: Texas Supreme Court

102 S.W.2d 405

UNIVERSAL LIFE & ACCIDENT INS. CO. v. SANDERS.

No. 2051 - 6836.

Commission of Appeals of Texas, Section A.

March 10, 1937.

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

Suit by Bell Sanders against the Universal Life & Accident Insurance Company. Judgment of the district court in favor of defendant was reversed and the cause remanded by the Court of Civil Appeals [74 S.W.(2d) 301], and defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

Storey, Sanders & Sherrill, R. G. Storey, and H. B. Sanders, all of Dallas, for plaintiff in error.

B. Ray Smith and Smith & Smith, all of Dallas, for defendant in error.

Handley & Shaeffer, of Dallas, as amicus curiæ.

HICKMAN, Commissioner.

Plaintiff in error will be called defendant, and defendant in error plaintiff, in accordance with their respective designations in the trial court. A general demurrer to plaintiff's petition was sustained by the trial judge and, upon her refusal further to amend, the case was dismissed. The Court of Civil Appeals reversed that judgment and remanded the cause for trial on its merits. 74 S.W.(2d) 301. A rather full statement of the allegations of the petition is made by the Court of Civil Appeals. For the purposes of this opinion that statement may be condensed as follows:

In March, 1928, defendant issued to plaintiff a policy of health and accident insurance wherein it bound itself to pay the plaintiff a stipulated sum per week for sickness resulting in total disability. While such policy was in force and effect, plaintiff alleges that she became totally and permanently paralyzed. She instituted this suit to recover for payments alleged to have accrued and for the value, as of the date of the trial, of all future installments to mature during her life expectancy, which expectancy was alleged to be 27 years from and after January 23, 1933, based upon the American Experience Table of Mortality. It is not contended that the allegations of the petition are insufficient to state a cause of action for payments matured at the time of trial, but it appears that the amount thereof is not within the jurisdiction of the district court, and, if the petition states no cause of action for recovery in a lump sum of the value of future payments, the demurrer was properly sustained. There is therefore presented for decision the question of the sufficiency of the petition to state a cause of action for damages for anticipatory breach of the contract of insurance.

In the case of Pollack v. Pollack, 39 S.W.(2d) 853, 855, Id., 46 S.W.(2d) 292, 295, this court announced the rule that when a party who is obligated by contract to make monthly payments of money to another absolutely repudiates the obligation without just excuse, the obligee is "entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have received if the contract had been performed, and he is not compelled to resort to repeated suits to recover the monthly payments." The Court of Civil Appeals correctly held that those opinions rule this case. There are no substantial grounds of distinctions between the contract there considered and the one here under review.

Defendant argues that the rule announced in the Pollack Case should not be made applicable to health and accident insurance policies, its position being that such policies may be distinguished from the contract considered in that case on several grounds. In the first place, it is pointed out that the contract under consideration in the Pollack Case was not a money contract, pure and simple, whereas health and accident insurance policies are money contracts, pure and simple. This contention is answered by the following language taken from the opinion in the Pollack Case on motion for rehearing: "* * * and we are further of the opinion that no distinction should be made between contracts to pay money, pure and simple, and other such contracts."...