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Board after the amendment took effect.
On Motion to Correct and Reform Judgment
and Retax Costs, Etc.

condition by the railway company was a part, | Leg. (1917) c. 103 (Vernon's Ann. Civ. St. Supp. and his action was founded upon a violation 1918, arts. 5246-1 to 5246-91), the rights of of that statutory duty to himself as a member employé and insurer were fixed by the law as of the public. In Dooley's Case, the railway it existed prior to amendment, though employé company itself inflicted the injury upon him presented his claim to the Industrial Accident by negligently and violently propelling others of its cars, with which he had no connection and of which he had no knowledge, against a standing fruit car he was unload-4. MASTER AND SERVANT 420-COSTS PROPing from within; it having placed the car on a side track for that particular purpose. Obviously, the same principle could not rule these two cases as does the one at bar. Many of the others presented by the appellee have to do with the question of contributory negligence, a discussion of which would be wholly academic, if in the first instance no actionable negligence was brought home to the appellant.

ERLY ADJUDGED AGAINST APPELLANT RESIST-
ING PAYMENT OF AWArd under WORKMEN'S
COMPENSATION ACT.

award of Industrial Accident Board awarding Where insurer, without appealing from employé certain sum per week for certain number of weeks, refused to make payment of the weekly amounts as they became due until the sum of $306 had become due, and where upon employe's action on award it sought to have award set aside, appellate court, on insurer's appeal from judgment for $950, properly adfind-judged costs against insurer, though it reduced judgment to the sum of $245.50, notwithstanding Vernon's Sayles' Ann. Civ. St. 1914, art. 2046, providing that appellant shall recover costs if judgment on appeal is for an amount less than lower court's judgment; the court, under the circumstances having "good cause" to "adjudge the costs otherwise" under article 2048.

From these conclusions it follows that no fact issue was left for the jury, whose ings accordingly became immaterial. The judgment is reversed, and the cause is here rendered for the appellant. Reversed and rendered.

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Decree of the Industrial Accident Board is final as to all issues and controversies, both as to law and fact, where no action has been taken by either party to set aside the final ruling

and decision of the board.

2. MASTER AND SERVANT

348-WORKMEN'S

COMPENSATION GOVERNED BY LAW EXISTING
AT TIME OF ACCIDENT.

Where insurance policy was issued to employé and accident occurred while Acts 33d Leg. (1913) c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h to 5246zzzz), was in force, and prior to amendment thereof, by Acts 35th Leg. (1917) c. 103 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), the rights of the parties were governed by the provisions of the former statute in view of the latter statute, part 4, § 3b, employé having no right under the statute as amended to judgment for installments not due or to recover a penalty or attorney's fee upon insurer's nonpayment of the matured installments.

3. MASTER AND SERVANT 348-RIGHTS OF EMPLOYÉ AND INSURER FIXED BY LAW EXISTING AT TIME OF ACCIDENT.

Where employé was injured while Acts 33d Leg. (1913) c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h to 5246zzzz), was in force, and prior to amendment thereof by Acts 35th

Appeal from El Paso County Court, at Law; W. P. Brady, Judge.

Suit by Jesus Lucero against the Southern Surety Company. Judgment for plaintiff, and defendant appeals. Affirmed as reformed.

Burges & Burges and E. F. Cameron, all of El Paso, for appellant.

A. S. Thurmond, of El Paso, for appellee.

WALTHALL, J. This suit was brought by Jesus Lucero, appellee, on April 4, 1919, against appellant, Southern Surety Company, based upon an award made by the Industrial Accident Board on June 19, 1918, upon a policy of insurance, in which that board, after its several findings, among them that appellee had sustained a permanent partial incapacity to work, rendered its judgment that appellant pay unto appellee in full settlement and satisfaction of his claim for compensation for injuries sustained by him September 4, 1916, a weekly compensation of $2.25 payable weekly as the same accrues, for a period of 300 weeks, beginning November 27, 1916. Appellee alleged that 109 weekly payments of $2.25 each of the award, amounting to $245.50, was then past due, and that no part of said award had been paid, and asked judgment for the sum of $675, the full sum of said award, with 12 per cent. of said award additional and $150 attorney's fee, making the total sum sued for $950.

The case was tried before the court without a jury, and judgment was rendered for appellee for $950.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.)

Appellant presents several assignments of error arising upon the overruling of its general demurrer and special exceptions, to the effect that the petition shows that the award of the Industrial Accident Board was made upon a policy of insurance issued prior to and upon an accident happening prior to the passage of chapter 103, passed by the ThirtyFifth Legislature (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), amending chapter 179 of the Acts of the Thirty-Third Legislature (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h to 5246zzzz); that the petition undertakes to set up in appellee a right to mature the whole of the award of the Industrial Accident Board because of a failure of appellant to pay the weekly installments thereunder; and that the facts alleged are insufficient in law to show such right. For the reasons stated, it is further insisted that it was error to render judgment against appellant for 12 per cent. penalty on the amount of the award, and attorney's fee. Errors similar to the above are assigned, but we think the above sufficient to present the questions raised.

Appellee's contention is to the effect that the act amended by the act of the ThirtyFifth Legislature was in force on June 19, 1918, when the case was heard and determined by the Industrial Accident Board, and that the trial by the board was in conformity to and under the provisions of the amended act, and that appellant, being a party to that action and properly before the board, is bound by the judgment rendered.

We do not understand appellant's contention here to be that it is not bound for the full amount of the award of $2.25 per week for 300 weeks, beginning with November 27, 1916, as the weekly payments fall due and as awarded by the board, but that its policy of insurance having been issued and the injury to appellee having happened prior to the passage of the act of the Thirty-Fifth Legislature, the liability for the accident to appellee would arise under and be controlled wholly by the act of the Thirty-Third Legislature, the law and the schedules of compensation of indemnity in force at the time its policy of insurance was issued, and at the time of the accident to appellee, and that the law conferring upon claimants for compensation the right to mature installments for compensation yet to become due because of failure of the insurer to pay installments of insurance past due, and of appellee's right to the penalty and attorney's fees not being a part

of the law of this state at the time of the issuance of the policy, nor at the time of the accident to appellee, appellee would not have the right to mature the payments not due, and would not have the right to recover the penalty and attorney's fees as provided under the subsequently enacted law.

[1] All issues and controversies, both as to law and fact with respect to the original

cause of action, were finally determined by the decree of the Industrial Accident Board; no action having been taken by either party to set aside the final ruling and decision of the board.

The act of the Thirty-Third Legislature, c. 179, does not provide a means or procedure by which the board or the courts are given jurisdiction to enforce the awards made by the board as a final judgment, nor does the act provide for maturing weekly payments not due, nor fix a penalty for a nonobservance of such awards, nor provide for the payment of attorney's fees in the event suit is brought to enforce the payment of the award. The act of 1917, Thirty-Fifth Legislature, c. 103, provides a means and procedure by which the courts are given jurisdiction on questions arising under said act, and on the happening of the contingencies set out in section 5a, p. 2, in a suit on failure of the insurer to make prompt payments indicated in the award of the board as they mature, and on a failure to make such payments to mature the entire claim with 12 per cent. as damages upon the amount of compensation so recovered, with a reasonable attorney's fee. [2] It seems. clear that unless the provisions of the act of the Thirty-Fifth Legislature can be invoked and made to apply, appellee would have no right to sue upon installments of the award of the board which had not matured, or recover a penalty or attorney's fee because of a failure of appellant to pay matured installments. New York Life Ins. Co. v. English, 96 Tex. 268, 72 S. W. 58. The question then is presented: Do the provisions of the act of the Thirty-Fifth Legislature apply? We think the question is settled by the act itself, by section 3b, pt. 4, of the act. The section reads:

"No inchoate, vested, matured, existing or other rights, remedies, powers, duties or authority, either of an employé or legal beneficiary, or of the board, or of the association, or of any other person shall be in any way affected by any of the amendments herein made such rights, remedies, powers, duties, and auto the original law hereby amended, but all thority shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made, and to that end it is hereby declared that said original law is not repealed, but the same is, and shall remain in full force and effect as to all such rights, remedies, powers, duties and authority; and further this act in so far as it adopts the law of which it is an amendment is a continuation thereof, and only in other respects a new

enactment."

[3] We are of the opinion that the rights of both parties hereto are fixed and limited by the law as it existed at the time of the accident to appellee, otherwise the section of the act above quoted would seem to have no application. If we are not in error in the construction we place upon the above-quoted section of the act of the Thirty-Fifth Legis

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lature, in limiting both insurer and insured | formed as to have the judgment of this court to the law in force at the time of the ac- to recite the sum of $306 as due and unpaid cident, it would seem to be immaterial wheth- at the time of the rendition of the judgment er appellee presented his claim to the board in the trial court and interest as stated on before or after the act of the Thirty-Fifth the $306 from the date of judgment in the Legislature was in force, as the board would trial court. necessarily make its award under the law in force at the time of the accident. The issuance of the policy of insurance followed by the injury created the liability, and the rights of appellee and the liability of appellant became established under the facts and schedules of compensation under the law as each then were, and there is nothing in the final award by the board to indicate that same was not made under the acts of the ThirtyThird Legislature.

We think the portions of appellee's petition seeking to mature weekly payments not then due, and seeking to recover, as damages, 12 per cent. thereon additional, and attorney's fees, were amenable to the exceptions made, and that it was error to overrule them, and that there was error in awarding judgment and execution for installments not then due, and for 12 per cent. thereon and attorney's fees. The judgment is reformed by eliminating all that portion thereof save and except for the $245.50 due and unpaid at the time of the judgment, and interest thereon, and execution therefor, with costs of this appeal, which action is taken without prejudice to the right of appellee to sue for and recover such installments of weekly payments, and interest as they mature. To the extent as above indicated, the judgment is reformed, and, as reformed, affirmed.

On Motion to Correct and Reform Judgment and Retax Cost and to State of Record Cause for Adjudging Cost against Appellant.

On motion of appellee, our attention is called to an error apparent in the judgment in which we say:

"The judgment is reformed by eliminating all that portion thereof save and except for the $245.50 due and unpaid at the time of the judgment."

An inspection of the record discloses that, at the time of the rendition of the judgment in the trial court, $306 was due and payable to appellee, that is, pay for 136 weeks at $2.25 per week, as awarded by the Industrial Accident Board. Our judgment, as stated in the opinion, is here so corrected and re

We

[4] Also, appellant by motion to retax the costs shows that, without stating a cause on the record, the judgment as affirmed is for a less amount than the judgment in the county court at law, and insists that it is entitled to recover costs of this appeal under article 2046, Vernon's Sayles' Civil Statutes. Article 2048, Vernon's Sayles' Civil Statutes, provides that the court may, for good cause, to be stated on the record, adjudge the costs otherwise than as under article 2046. did adjudge the costs otherwise than as provided in said article, but did not state the cause of record. If above articles apply to appellate courts, we say: The Industrial Accident Board, on a hearing at which appellant was a party, awarded appellee the sum of $2.25 per week for 300 weeks on account of 50 per cent. permanent partial incapacity for work. Without having taken an appeal from the action of the Accident Board, appellant refused to make payment of the weekly amounts as they became due and payable until the sum of $306 at the time of the trial had become due, and on the trial sought to have the award set aside and held for naught. It occurred to this court on the trial on the appeal, and does now on the hearing on this motion, that appellant's refusal to pay the weekly amounts awarded as they fall due was and is arbitrary and without good reason. No suggestion of a valid defense against the payment of the weekly amounts as they become due, as awarded, appears on the record. Appellant's failure and refusal to pay said award necessitated the suit by appellee to recover the amounts then due. These facts appear to this court to be "good cause" for taxing the costs of this appeal against appellant.

The part of the motion to retax is overruled, and the part suggesting that we state on the record cause to adjudge the cost otherwise than as provided under article 2046, is sustained. Except to correct the statement of the amount due appellee at the time the judgment was rendered in the county court at law, as above, and to state of record cause to adjudge the costs against appellant, the judgment as occurring in the opinion remains as there written.

(218 S.W.)

AMERICAN NAT. INS. CO. v. BALL.

(No. 6314.)

policy had lapsed as of January 31, 1919,
and it would not be permissible to continue
the same on account of plaintiff's age.
The answer consisted of various excep-

(Court of Civil Appeals of Texas. San Antonio. tions, a general denial, a special plea that

Jan. 14, 1920.)

1. INSURANCE 146(1) POLICY HOLDER BOUND BY CONDITIONS THOUGH HE FAILS TO READ THEM.

A policy holder is bound by the printed conditions of the policy, though he failed to read them.

2. INSURANCE 145(1) - RIGHT OF HEALTH AND ACCIDENT INSURER TO TERMINATE POLICY.

Where a health and accident policy extended until February 1, 1908, and for such further periods as might be stated in renewal receipts, held that the insurer was authorized under the provision of the policy, declaring that acceptance of any renewal premium shall be optional, to terminate the policy by refusing to accept a renewal premium; it being immaterial that the insurer's agent, who gave notice of termination, referred to the policy having lapsed.

the policy contained a certain cancellation clause, and that defendant only complied with said clause when it notified plaintiff that it would no longer insure him and returned his check.

Plaintiff filed a supplemental petition containing exceptions; a general denial; a special plea that defendant failed to comply with the cancellation clause, and waived the same by letter dated January 20, 1919, which letter, it was contended, constituted an offer to keep the policy in force for as many months as plaintiff should pay premiums, or at least for the "next policy premium month, if such premium was paid in accordance with the terms thereof," and that said offer had been accepted; a special plea that the clause of the policy relied on by defendant, if construed as contended by defendant is harsh, unreasonable and contrary to pub

3. INSURANCE 198(6)-PLEADING IN AN- lic policy; and a special plea that if the SWER CONDITIONS WARRANTING TERMINA-contract could be canceled the proper conTION OF POLICY UNNECESSARY. struction of its provisions would make it mean that such cancellation involved the return of all premiums paid.

The failure of insurer, which terminated a health and accident policy, to plead the policy condition authorizing it to terminate will not prevent it from defeating recovery by insured of premiums already paid, on the theory there was a breach of contract, on the ground that the policy allowed it to terminate the risk; such condition being part of the contract alleged to have been breached.

The defendant filed a supplemental answer, in which it pleaded the cancellation more fully, and pleaded other matters not necessary to mention.

The trial 'resulted in a judgment for plaintiff for $300, the amount of the premiums paid, with interest, less the amount paid

Appeal from Guadalupe County Court; J. plaintiff as sick benefit, with interest. B. Williams, Judge.

American

On May 14, 1906, W. B. Ball took a health and accident insurance policy with appellant. On December 23, 1907, he took out a

Action by William B. Ball against the National Insurance Company. From a judgment for plaintiff, defendant different policy in lieu of the first one. He testified that it was his purpose to continue appeals. Reversed and rendered. insurance in the same company. There is Greenwood & Short, of Seguin, for appel- no evidence that he was induced by fraud to abandon the old policy in favor of the Wurzbach & Wirtz, of Seguin, for appellee. new. The new policy does not refer to the

lant.

MOURSUND, J. This is a suit by appellee to recover of appellant certain premiums paid by him upon two insurance policies, the suit being based on the theory that the second policy was issued in lieu of the first, and was a continuation of the contract, and that the defendant breached the second contract, thus entitling plaintiff to rescind and recover premiums.

The allegations concerning the breach were in effect that the policy bound the defendant to insure plaintiff so long as he paid his monthly premiums, and that despite such provision the defendant, on February 3, 1919, returned to plaintiff a post office money order for $1.50, sent to pay premium for February, and notified plaintiff that his

first one in any way.

We will state so much of the new policy as is material upon the issues raised. It provides that the company "does hereby in. sure W. B. Ball, subject to all the conditions herein contained and indorsed hereon, from 12 o'clock noon of the day the contract is dated until 12 o'clock noon of the first day of February, 1908, and for such further periods, stated in the renewal receipts, as the payment of the premiums specified in said schedule will maintain this policy and insurance in force."

The policy contained six conditions of which the first and third read as follows:

"(1) If the payment of any renewal premium shall be made after the expiration of this policy or the last renewal receipt, neither the as

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sured nor the beneficiary will be entitled to [ facts concerning remittance and return recovery for any accidental injury happening thereof, and stating: between the date of such expiration and 12:00 o'clock noon, standard time, of the day following the date of such renewal payment; nor for any illness originating before the expiration of thirty days after the date of such renewal payment. The acceptance of any renewal premium shall be optional with the company."

"(3) The company may cancel this policy at any time, without prejudice to the rights of the assured to any claim then pending, by written notice of cancellation served upon or mailed to the address of the assured as it appears of record with the company, together with the company's check for the unearned portion, if any, of the premium paid, which check shall be sufficient tender."

[1] While appellee testified he only read the conditions casually, there can be no doubt that he is bound by them, and it is immaterial what construction he placed upon provisions of the policy.

[2, 3] Appellee paid the monthly premiums which accrued under the terms of the policy to the duly authorized collector for the company up to and including the premium for January, 1919. On January 20, 1919, the company notified him of a change in its collecting system, to the effect that premiums should be remitted to McGlawn, Smith & Co. at Houston, by post office or express money order. Attention was called to the fact that the premium is due to be paid by the 1st of each month and should reach the division office by that date, and the further statement was made that remittance should be mailed on or before the 1st. Under the policy premiums could be paid annually in advance. The letter of January 20, 1919, suggested that payment could be made for three or six months, or for a year, if desired.

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On January 29, 1919, appellee mailed at Seguin a post office money order payable to said agent, and in the regular course of mail it should have reached Houston on the morning of January 30, 1919. The agents received this money order, and returned it to appellee with a letter date February 3, 1919, containing the following statements:

"We are in receipt of yours inclosing post office money order in the amount of $1.50 in payment of the premiums on your policy No. 5197 and we beg to advise that we are returning this remittance and advise you that it will not be permissible for us to continue your policy in force on account of your age.

"We have carried the liability on this policy for all of the premiums that you have paid, including January, 1919, and the policy lapsed as of January 31st and we would not care to renew it for February and other months, as said to you above, on account of your advanced age."

On February 21, 1919, appellee, through his attorneys, wrote appellant, reciting the

"Since you have thus repudiated your contract, we demand, on behalf of the policy holder, that you return to him the amount of all assessments paid by him, together with legal interest on each assessment from date of pay

ment."

This letter was answered by letter of February 26, 1919, calling attention to the cancellation provision of the policy, and stating that the action of the company was within its rights, and it was entitled to retain premiums received by it.

In the meantime, on February 24, 1919, a card was sent appellee by McGlawn, Smith & Co., stating that they regretted to note that he had overlooked the importance of paying premium, thereby allowing policy to lapse, and inquiring why he discontinued his insurance. This was evidently sent through mistake, and was never answered by appellee.

We see no ambiguity in the policy such as would justify a holding that it insured appellee as long as he should elect to pay premiums. It specifically states that subject to the conditions it insures him to February 1, 1908, and for such further periods, stated in the renewal receipts, as the payment of the premiums specified in the schedule will maintain the policy in force. There can be no doubt that the contract provides that insurance during the period stated and any renewal thereof is subject to the conditions, among which are the two hereinabove copied. In addition, the policy only provides for insurance during such renewal periods as are stated in renewal receipts. No renewal receipt was ever issued for February, 1919, so it appears that there was no need of any cancellation. This part of the policy, when considered in connection with the two conditions, makes it clear that it was agreed that the company had the right to refuse to accept any premium, and thus prevent a renewal, and had the right, if it had issued a renewal receipt, to cancel the policy and renewal by returning the unearned part of the premium. Such a provision was important because premiums could be paid for a year in advance.

In this case the company declined to renew the policy, and returned the money order. It was acting strictly within its rights in so doing, and it can make no difference whether it termed its act a cancellation or not. Without a renewal receipt appellee had no insurance for February, 1919, and appellant had the right to refuse his premium and refuse to issue the renewal.

As appellee pleaded and attempted to show a breach of the contract, he must lose if the evidence fails to show such a breach. It is immaterial whether the company pleaded

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