No. 5663. | Tex. App. | Oct 11, 1916
Prior to his death in February, 1914, Evans Hollingsworth took out two policies of insurance with appellant, each of which was payable to his wife, Mary L. Hollingsworth. One of these was a sick benefit policy, and the other a "whole life policy." After his death, payment not being made, appellee brought this suit against appellant to recover thereon, as well as for the statutory 12 per cent. damages and attorney's fees. Appellant pleaded payment, and denied the right on the part of appellee to recover penalty and attorney's fees, on the ground that no statutory demand had been made for the payment of said policies. A jury trial resulted in a verdict in behalf of appellee in the sum of $165, with 12 per cent. penalty, amounting to $19.80, and $200 attorney's fees, and upon which judgment was duly rendered, from which this appeal is prosecuted.
The principal questions raised by this appeal are: (1) Whether the statutory demand for payment must be made upon the company alone, and not upon an agent; (2) if permitted to be made upon an agent, whether the demand in the instant case was made upon an agent of the company authorized to *793
receive such demand; and (3) if so, whether the amount recovered for attorney's fees was excessive. The statute upon which recovery for the penalty and attorney's fees is predicated provides that in cases where a loss occurs, and the insurance company liable therefor shall refuse to pay the same within 30 days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, 12 per cent. damages on the amount of such loss, together with reasonable attorney's fees, for the prosecution and collection of such loss. Article 4746, vol. 3, Vernon's Sayles' Rev.Civ.Stats. As a corporation can only act through its agents, it seems to us that such demand can be made upon any agent of the company duly authorized to act for it in the premises. To hold otherwise, we think, would be to render the statute inoperative. Sabine East Tex. Ry. Co. v. Cruse,
In construing a somewhat similar statute, in Railway Co. v. Cruse, supra, Mr. Chief Justice Stayton held that:
"Penalty shall not be recoverable unless notice be given to the railway company; and by the latter we would understand to be meant some officer of the company clothed with general powers."
If in the Instant case it can be shown that Russell, upon whom demand for payment was shown to have been made, while not a general officer of the company, was authorized by it to make settlement of this particular loss or losses of like character, then we think the company would be bound by proper demand made upon him for payment thereof.
We do not think it was proper, in the absence of proof showing the amount of services performed by the attorneys prosecuting the case, in interrogating expert witnesses as to the value of such services, to recite what was done by counsel in the preparation of the case for trial. But, as appellant failed to object on the ground that no proper predicate was laid therefor, this is not deemed reversible error. We are not prepared, however, to approve the amount of the verdict for attorney's fees.
For the errors indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.