National Life & Accident Ins. Co. v. Johnson

COMBS, Justice. This appeal was prosecuted from the County Court of Jefferson County at Law, Jefferson County, Texas. The judgment in favor of appellee, Gertrude Johnson, against appellant, the National Life and Accident Insurance Company, Inc., for the sum of $125 is fundamentally erroneous as to the amount of the recovery. Ap-pellee’s cause of action against appellant was for damages for breach of two insurance contracts. The evidence supports the jury’s verdict that appellant breached these contracts, that at the time of the breach appellee had a life expectancy of 19 years, and that 5% simple interest was a reasonable rate to be used “in compounding the interest annually.” The theory of ap-pellee’s petition was that, at the time of the breach, she was not an insurable risk; that issue was not sent to the jury but was found in appellee’s favor by the court in rendering the judgment, which finding has reasonable support in the evidence. The face of the policies was $426; had appellant lived her life expectancy she would have paid premiums in the amount of $239.26; the difference between the face of the policies and the amount of the premiums is $70.32. Appellee’s measure of damages was the cash value of this $70.32, discounted at the rate of 5% interest, compounded annually. Grand Fraternity v. Nicosia, Tex.Civ.App., 41 S.W.2d 684; Illinois Bankers’ Life Assur. Co. v. Payne, Tex.Civ.App., 62 S.W.2d 315; Id., Tex.Civ.App., 93 S.W.2d 576; American Nat. Ins. Co. v. Nicholson, Tex.Civ.App., 119 S.W.2d 128. We overrule all of appellant’s other assignments. Our clerk is directed to make the calculations on the basis stated above, and the judgment of the lower court is reformed, with damages assessed in ap-pellee’s favor for the present value of the $70.32. Reformed and affirmed.