65 S.W.2d 805 | Tex. App. | 1933
There is directly presented by the proposition which is based on the first and second assignments of error the controversial and vital point in the case of whether in the circumstances proven the insurance company can be deemed to have waived the right of forfeiture of the policy for nonpayment of premiums. The evidence is without dispute that the insured failed to pay the monthly premiums as and when due on his policy during the months of September and October, 1931; that the default and nonpayment thereof was existing on the days of October 29 and October 31, 1931; that the policy of insurance contains the express provision that: "The insured agrees to make payments in the sum of $6.00 per month and to remit the same to the Home Office within ten days after notification, and failure to so remit automatically cancels all benefits and insurance given by reason thereof and by reason of this policy." Such provision is valid, and its effect upon such default in the payments mentioned by the insured is to preclude the beneficiary from a recovery upon the policy, unless the answer thereto would be, of waiver by the insurance company of its right to urge or take advantage of such default in the payments mentioned. It is the conceded rule that, if the insurer intentionally elects to take advantage of the known existing default in the payment of premiums, the law, in order to avert the forfeiture of the policy, will hold the insurer irrevocably bound *808
as by an election to treat the contract of insurance as if no cause of forfeiture had occurred. This election may be either expressed or implied; and any competent evidence, whether direct or circumstantial, may be shown which tends to prove or disprove such fact. Equitable Life Assur. Soc. v. Ellis,
Error is predicated upon the refusal to submit to the jury certain special issues. It is believed there was no error. The issue submitted to the jury is in proper form, and there was no other issue in the case, but that of purely waiver or not.
The appellant predicates error upon the judgment as to the amount of recovery. The plaintiff sued for the matured installments, and specially asked that the liability of the insurance company be fixed as to the future installments. The court granted this relief, as was authorized to be done, under the general prayer for such other and further relief as entitled to by reason of the facts pleaded. The liability of the appellant to pay the amount promised in a lump sum has been decided in many cases.
We have considered all the assignments, and conclude that same should be overruled, as not presenting reversible error.
The judgment is affirmed.