Opinion
No. 3568.
July 5, 1928.
Appeal from District Court, Bowie County; Hugh Carney, Judge.
Action by Marvin T. Atkins against the State Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur and reformation of judgment.
By its policy dated March 12, 1926, the appellant life insurance company, in consideration of premiums paid and to be paid to it as specified, undertook to insure the life of appellee, Margin T. Atkins (referred to in said policy as "the insured"), in the sum of $2,500, and further undertook as follows:
"If the insured, after paying at least one full annual premium and before default in the payment of any subsequent premium and before attaining the age of sixty years, shall become wholly and permanently disabled by bodily injury or by 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, upon receipt at its home office of due proof of such disability of the insured as may be required by the company, will grant the following benefits: First. Will waive payment of premiums thereafter becoming due. Second. In addition will pay to the insured a monthly income equal to one per cent. of the original amount of insurance (exclusive of any accidental death benefit). The first monthly payment will be made upon satisfactory proof of disability as above provided, and the subsequent monthly payments will be made on the first day of each month thereafter during such disability. Any premiums so waived, or monthly income payments made, under this provision, shall not be a lien or charge against this policy in any settlement hereunder, and the values in the table of options on the first page hereof shall apply in the same manner as if the premiums had been paid by the insured. Without prejudice to any other cause of disability the entire and irrecoverable loss of the sight of both eyes, or the severance of both feet above the ankles, or of both hands above the wrists, or of the entire hand and one foot, occurring before age of sixty, will be considered total and permanent disability within the meaning of this provision. Proofs similar to those originally required of such continuous disability must be furnished at any time, if requested by the company, but not oftener than once a year; and if the insured should fail to furnish such proofs, or should so far recover as to be able to engage in any gainful occupation, the obligation on the part of the company to waive payment of premiums and pay to the insured a monthly income shall cease, and the insured shall resume payment of premiums in accordance with this contract, beginning with the first premium becoming due after failure to furnish such proofs or after the date of such recovery."
Appellee claimed that on September 6, 1926, he fell from the top of a boiler shed to the ground, a distance of about 14 feet, and as a result suffered injury, which by the terms of the part of the policy set out above entitled him thereafter to demand and receive $25 per month of appellant. This suit, commenced by appellee July 12, 1927, was to recover said sum of $25 per month from said September 6, 1927, a penalty of 12 per cent. on the amount thereof, and reasonable attorney's fees, alleged to be $500. The trial was to the court without a jury, and resulted in a judgment in appellee's favor for the sum of $402, $27 of which was a penalty, and $150 attorney's fees the court found appellee was entitled to recover. And the court further adjudged as follows:
"It is further ordered, adjudged, and decreed by the court that the plaintiff do have and recover of and from the defendant the further sum of $25 per month, the first payment to be made on the 1st day of January, A.D. 1928, and on payment of $25 on the first day of each succeeding month thereafter, and continuing throughout his natural life, subject, however, to the right of defendant to a physical examination of plaintiff not more often than once each year, said physical examination to be made, if desired by defendant, on the 13th day of December, A.D. 1928, and if, upon physical examination and satisfactory proof, the court finds that the plaintiff herein has recovered to such an extent as to earn a livelihood or is capable of doing and performing manual labor; pursuing a gainful occupation by which plaintiff can support himself and family, said payments may be, after due notice to all parties and a hearing before the court, under the orders of the court, be discontinued and this judgment so modified. It is further ordered, adjudged, and decreed by the court that this cause shall remain on the docket of this court; subject to the further orders of the court, in accordance with the terms of this judgment, subject, however, to any compromise, agreement, or settlement that the parties to this suit may make, and cause to be entered of record."
Arnold Arnold, of Texarkana, for appellant.
Wm. V. Brown, of Texarkana, for appellee.
It is insisted the trial court erred when he refused to sustain appellant's plea that —
Appellee "had not furnished due, proper and satisfactory proofs showing that he was totally and permanently disabled, so that he is or will be permanently, continuously, and wholly prevented thereby from performing work for compensation or profit or from following any gainful occupation."
The "proofs" furnished by appellee with his claim consisted of his affidavit and the affidavit of a physician, Appellee's affidavit was dated April 11, 1927, and was to the effect that he was injured by falling through the roof of a boiler shed onto a "piece of timber 4x6 inches, thereby crushing his backbone at the small of his back," in consequence of which he had been "totally disabled from the 6th day of September, 1926; that to the best of his knowledge and belief such disability will be permanent, and that he will be continuously and wholly prevented thereby from performing any work for compensation or financial gain." In the physician's affidavit, also dated April 11, 1927, it was stated that the injury to appellee was "a fracture of the twelfth dorsal vertebra," the "prognosis" of which was "indefinite"; and it was stated, further, that appellee was not then able to engage in any gainful occupation, and that his disability was "total (quoting) and may be permanent."
The contention that the proof specified was insufficient ignores, without disclosing a reason for doing so, the affidavit of the appellee, and is based on the physician's statement that his prognosis of the injury was "indefinite," and on his statement that appellee's disability might be, instead of that it was, permanent. It seems there was no stipulation in the policy in regard to the proof other than that it should be "satisfactory." The effect of that stipulation was not to give appellant an exclusive right to determine whether the proof furnished was sufficient or not. Hence appellant's conclusion that it was insufficient was not binding upon appellee. It was for the court, when appealed to, to say whether it was "satisfactory" or not. 14 R.C.L. 1337. And we think the court did not err when he determined that it was prima facie sufficient. Evidently it was not contemplated that the proof should be absolute that the disability was "permanent" in the sense in which that word is ordinarily used, for the contingency of a recovery from the disability was provided for.
Appellant's contention that the court below erred "in rendering any judgment at all" against it is on the theory, it seems, that the evidence at the trial did not warrant a finding that appellee was "totally and permanently disabled" within the meaning of the policy. At the trial, had more than 15 months after he suffered the injury in question, appellee testified he "did not know any other kind of work than hard manual labor" and had not "done any work of any kind or been able to do any" since the accident. The testimony of his wife was to the same effect. Dr. E. L. Beck testified he did not think a man in the condition appellee was in at the time of the trial could do any hard manual labor, and that it was not likely that condition would become better. He further testified:
"Mr. Atkins (appellee) received a fracture of the twelfth dorsal vertebra, and it shows a wedge-shaped condition at this time. Also, the vertebra looked as though it had been mashed, the bone, however, being in generally good shape; that is to say, it has not been greatly impressed. The same cannot be improved by treatment so far as I know, but time may relieve some symptoms and give him better use of his body. On the other hand, it may result in greater disease of the body. * * * As to his clerking in a store, it would be all right if he were not standing on his feet too much. In standing on his feet that vertebra, instead of being normal, that injury drove it down and flattened and lessened the space there, and I think being constantly on his feet would be hurtful. If he had a place where he could be perfectly easy, I imagine he could do something. * * * I imagine he could sit in a picture show window and take up tickets a part of the time anyway; he ought to be both off and on his feet."
The contention is believed to be without merit, and is overruled. Fidelity Co. v. Joiner (Tex.Civ.App.) 178 S.W. 806; Bonding Co. v. Bryant (Tex.) 240 S.W. 893; Fidelity Co. v. Getzendanner, 93 Tex. 487, 53 S.W. 838, 55 S.W. 179, 56 S.W. 326; 14 R.C.L. 1315.
We think the trial court erred in the part of his judgment copied in the statement above. He should not have awarded appellee a recovery of sums not due at the date of the judgment, and he should not have undertaken to retain jurisdiction of the cause after rendering judgment for monthly payments then due. Ins. Co. v. English, 96 Tex. 268, 72 S.W. 58; Knights of Maccabees v. Cox, 25 Tex. Civ. App. 366, 60 S.W. 971; Security Union Casualty Co. v. Oil Corporation (Tex.Civ.App.) 1 S.W.2d 1112; Southwestern Surety Ins. Co. v. Curtis (Tex.Civ.App.) 200 S.W. 1162; Implement Co. v. Frey (Tex.Civ.App.) 200 S.W. 1143. We think the trial court erred further when he awarded appellee a recovery of $150 as attorney's fees. The allowance was made, it seems, on the erroneous theory that judgment could be rendered for monthly payments to become due as well as for payments already due.
We do not think appellee was entitled to recover more than half the sum adjudged to him as an attorney's fee, and will reverse the judgment and remand the cause for a new trial, unless a remittitur of $75 of the amount is filed here within ten days from this date. If such a remittitur is filed, the judgment will be so reformed as to eliminate the portion thereof copied in the statement above, and as to award appellee a recovery of only $75 as attorney's fees, and as so reformed will be affirmed.