Citations
- 215 S.W.2d 416
Full opinion text
SPEER, Justice.
This is -a -suit -by appellee, Abbie Myrtle Stanley, against appellant, John Hancock Mutual Life Insurance Company, on -a life insurance contract insuring -the life of Louis D. Stanley, now deceased.
It is unnecessary to give the details -of appellee’s petition -since they are not chai-lenged in .this appeal. It is sufficient to state that appellee is the surviving wife of the insured 'and is the named beneficiary in a 'certificate issued by appellant under the. provisions of a group policy issued by appellant to Central Louisiana Electric Company (to which we will refer as the ■employer) on its employees. Under the provisions of the master policy the coverage of 'an employee was controlled by the amount of his salary. By stipulations in the record deceased’s salary was such as would make $2,500 the amount of his insurance if there was liability by appellant.
Insured died in Texas and suit was instituted in the District Court of Denton County for the recovery of the face of Ae contract and for statutory penalty and attorney’s .fees; apt allegations were made relative to the items of penalty and attorney’s fees.
Appellant defended upon an.answer of general denial and special pleas to the effect, (1) that it was not furnished with proof as required by the terms of Ae policy (setting out in its answer the conditions of. its liability as provided by the .policy); (2) .insured terminated the certificate of insurance by resigning from his position wiA his employer on May 31, 1946 and accepted employment and performed services for a concern in Texas not connected or affiliated with his employer who held Ae master policy; Aat because of the matters Aus plead the certificate sued on had terminated and appellant was not liable in any sum.
Trial was to Ae court wiAout a jury; judgment was entered for appellee for the face of the certificate with statutory penalty and attorney’s fees; hence this appeal.
We must keep in mind that the employer ■carried the master -policy on its employees and that such employees, including the deceased, under certain conditions not necessary to point out here, could have a certificate issued to Aem, as did the deceased. The crucial point in the contract reads: “Extension of death benefit in the event of total disability. If due proof is furnished to Ae company on its prescribed forms- that the employment of the employee terminated with the employer on account of total disability from bodily injury or disease, which prevented Ae employee from engaging in any ¡business or occupation and from' performing any work .for compensation oi; profit and that such disability was continuous until the -death of Ae employee * * * that the amount of insurance on the ..life of Ae employee at Ae date of termination of employment will be paid to the beneficiary, provided said proof is furnished to the company at its home office within ninety days of the death - of the employee.”
Appellant relies upon five points of error. The first point is too long to copy here but its substance is: Since appellee’s right of recovery depended upon proof that deceased terminated his employment with his employer on account of total disability from bodily injury or disease, .the trial court erred in rendering judgment for her, because (a) the undisputed evidence shows Aat the insured voluntarily resigned his position with his employer in May, 1946- and ¡accepted employment with another concern in Texas; (b) there was no evidence that the insured terminated his employment