Opinion
No. 3667.
March 14, 1929.
Appeal from District Court, Collin County; F. E. Wilcox, Judge.
Action by Joe G. Lee against the Ætna Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.
The appeal is from a judgment denying appellant a recovery of anything on a policy insuring him in the sum of $2,100 against "loss or damage by windstorms, cyclone or tornado" of a country dwelling house, barn, and certain foodstuff, for a period of three years from January 23, 1926. It appeared from evidence heard at the trial that the property insured was almost totally destroyed by a windstorm which occurred May 9, 1927. It appeared, further, that, at the time said policy was issued, appellee issued another policy insuring appellant against loss of the property by fire. It appeared, further, that, at the time the policies were issued, to cover premium due appellee on same, appellant executed two promissory notes for $40.87 each, payable to appellee's order November 1, 1926, and November 1, 1927, respectively, and delivered same to appellee. The policy sued on contained a stipulation that, "if any (quoting) single payment promissory note (acknowledged as cash or otherwise) given for the whole or any portion of the premium for said policy shall not be paid promptly when due, this company shall not be liable for loss during such default and the said policy shall lapse until payment is made to this company at the Farm Department at Oklahoma City, Oklahoma, and the whole amount of installments or notes remaining unpaid on said policy may be declared earned, due and payable and may be collected by law;" and each of the notes contained a provision as follows:
"It is hereby agreed that if this note be not paid at maturity said policy shall be suspended, inoperative and of no force or effect so long as this note remains overdue and unpaid."
The note first maturing was not paid when it became due November 1, 1926, and at appellant's request the time for paying it was extended to January 1, 1927. It was not paid then, and had not been paid at the time the storm occurred May 9, 1927, as before stated. Appellee invoked that fact and the stipulations in the policy and notes set out above as a defense against the recovery appellant sought. The trial court thought it appeared as a matter of law that appellant was not entitled to the relief he sought, and instructed the jury to return a verdict in appellee's favor. Appellant insisted it did not so appear, but that there was evidence which would have supported a finding by the jury that appellee was in the attitude of having waived its right to claim that the operation of the policy stood suspended at the time of the windstorm, by reason of his failure to pay the note before that time. It appears in the record that, as a witness in his own behalf, appellant testified that he had "been carrying policies (quoting) in the Ætna Insurance Company off and on for the last 25 years." He said he was unable to pay said note due November 1, 1926, when it matured, and that he requested Ed Yeatts, appellee's local agent at Josephine, through whom he procured the issuance of the policies, to have appellee agree to extend the time for payment of the note. Yeatts afterward reported to him that appellee agreed to extend the time for such payment to January 1, 1927. The note was not paid then, however, and appellant testified he took up with Yeatts "the matter (quoting) of getting further extension. I asked him to see if he couldn't get a further extension of the note. * * * He told me that he did not want to see me lose my insurance. He said he would take it up with the company and if he could get an extension he would get it, and if he couldn't he would notify me. He did not notify me. I relied on his promise to notify me. If the defendant (appellee) or Mr. Yeatts had notified me that they would not give me any further extension I would have gotten the money and paid the note. He did not at any time notify me that he could not get any further extension for me. The defendant company did not notify me that they would not grant me further extension." There was no testimony showing that Yeatts or any one else ever applied to appellee for any further extension of the time for the payment of the note, and Yeatts as a witness denied that appellant ever said anything to him about procuring such further extension. In a letter to Yeatts written by appellee May 2, 1927, appellee referred to the fact that it agreed to the extension to January 1, 1927, and then said:
"However, it is now more than four months since the last maturity date and we have never received remittance to cover this item. We do not feel that we should be expected to wait any longer on Mr. Lee and would suggest that you give the master your personal attention and, if you find it impossible to collect the note, kindly forward us the policies for cancellation."
Appellant testified that Yeatts did not show him the letter of May 2, 1927, above referred to, nor say anything to him about having received same until after May 9, 1927, when the windstorm occurred.
Truett Neathery, of McKinney, for appellant.
Thompson, Knight, Baker Harris, of Dallas, for appellee.
The stipulations in the policy and notes being valid (North River Ins. Co. v. Reeder [Tex. Civ. App.] 288 S.W. 257; Equitable Life Assur. Society v. Ellis, 105 Tex. 526, 147 S.W. 1152, 152 S.W. 625), and it conclusively appearing in the evidence that appellant had not paid the note due November 1, 1926, at the time the property was destroyed by the windstorm of May 9, 1927, the judgment is not erroneous, unless it appeared that there was evidence warranting a finding that appellee waived the right it had to invoke the violation of the stipulations as a defense against the recovery appellant sought. If appellant's contention that there was such evidence ought to be sustained, it must be because that referred to in the statement above authorized such a finding; for (as we view it) there was none other of importance to the question adduced at the trial.
Appellant's view of such evidence seems to be that the jury might have found therefrom that for many years he had had appellee to carry insurance for him; that at his request, through its local agent, Yeatts, appellee had agreed to extend the time of the payment of the note from November 1, 1926, to January 1, 1927; that said Yeatts promised to take up with appellee the matter of obtaining a further extension of the time for such payment and to let appellant know the result; that it appeared from its letter of May 2, 1927, to Yeatts that, whereas appellee may not in fact have agreed to any further extension of the time for the payment of the note, and was insisting on the payment of same, it was not claiming that the policy had lapsed and was inoperative, but, on the contrary, was treating same as then operative and in full force and effect; and that, had Yeatts when he received said letter of May 2, 1927, advised appellant that appellee was demanding payment of the note, he would have paid it before the time when the windstorm occurred.
Appellant argues that, having made such findings, the jury would have had a right to conclude therefrom that appellee was in the attitude of having waived the stipulations in the policy and notes referred to, and cites Equitable Life Assur. Society v. Ellis, 105 Tex. 526, 147 S.W. 1152. 152 S.W. 625; Underwood v. Life Annuity Co., 108 Tex. 381, 194 S.W. 585; and Roberts v. Ins. Co. (Tex.Com.App.) 221 S.W. 268, as cases supporting that view of the law.
The holding in the Ellis Case was that a finding that the insurer had waived its right to treat the life policy as forfeited was warranted by evidence showing that, in correspondence between it and the insured after the time when it had a right to regard the policy as forfeited, it recognized same as valid and still in force. Under that state of facts the Supreme Court thought the insured was entitled to a reasonable time within which to accept a proposition based on the then validity of the policy the insurer made him in such correspondence, and, the insured having died before the expiration of such a time, that the beneficiary named in the policy was entitled to recover thereon. A material difference between that case and this one, we think, lies in the fact that in this one, contrary to appellant's view of the evidence, there was nothing showing that appellee treated the policy as not suspended but in force after January 1, 1927, the time to which it had agreed payment of the note might be extended. There was in fact no evidence showing appellee ever to have been requested to extend the time of payment beyond said January 1, 1927, or that it ever had any communication with appellant about the note after that time. It is argued that it appeared Yeatts had violated his duty in not at once advising appellant, on receiving the letter of May 2, 1927, that appellee was insisting upon payment of the note. But it seems to us the duty Yeatts violated was one he owed to appellee, and not to appellant.
The holding in the Underwood Case was that a finding that a waiver of a forfeiture of a life policy for nonpayment of premium due June 30, 1907, was warranted by evidence showing the insured had waived the payment of premiums due December 31, 1900, and March 31, 1907, and on July 11, 1907, had written the insured as follows:
"The premium of $30.75 on your policy No. 1319 became due June 30, 1907, and remains unpaid. We are particularly desirous of having you continue your insurance with this company, and would respectfully ask that you advise us the reason for your not remitting your premium when due."
As we view it, the Underwood Case furnishes no greater support than the Ellis Case does for appellant's contention.
And we think the Roberts Case furnishes even less support for such contention than that furnished by either of the other cases, for the holding in that case was predicated on evidence showing the jury had a right to believe that the insurer had agreed in a letter it wrote the insured before he died September 10, 1914, to extend the time for the payment of the premium to October 1, 1914.
We think the action of the trial court in instructing the jury as he did was not erroneous, and therefore will affirm the judgment.