
    CONTINENTAL CASUALTY CO. v. GREEN.
    (No. 2350.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 26, 1921.
    Rehearing Denied Feb. 3, 1921.)
    Insurance <&wkey;349(I)—Policy providing for payment of premium from wages for July not lapsed where insured died before last of such wages were payable.
    Where an insurance application and policy contemplated the giving by insured of an order on his employer’s paymaster for the premium and made such order a part thereof and the order given directed payment in installments, the first of which was to be paid from insured’s wages for July, and the employer paid its employees’ wages for the first part of the month on the 30th and for the last part of the month on the 15th of the following month, and insured died on August 7th, before the last of his July wages were payable, the premium was not overdue and the insurance had not lapsed.
    
      Appeal from District Court, Harrison County ; P. O. Beard, Judge.
    Action by Mattie Oreen against tbe Continental Casualty Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Tbe appellant issued an accident insurance policy to Isom Green on May 16, 1919, agreeing to pay to bis wife, Mattie Green, tbe sum of $2,000 if Isom Green lost bis life by accidental means witbin one year. Isom Green was a laborer working for tbe Texas & Pacific Railway Company, in tbe shops at Marshall, Tex. He was killed by accidental means under the terms of tbe policy on August 7, 1919, while working 'for the railway company. Tbe casualty company was duly notified of bis death, and legal demand was made by tbe beneficiary of tbe amount due under tbe policy, but tbe casualty company denied all liability on the policy and refused payment, claiming tbe policy bad lapsed for nonpayment of premiums. Tbe appellee brought tbe suit to recover tbe amount of tbe policy, attorney’s fees, and tbe statutory 12 per cent, penalty. Tbe defendant answered by denial, and specially that tbe policy was forfeited under tbe terms for nonpayment of premiums. Tbe case was tried before tbe court without a jury, and judgment was entered for tbe plaintiff.
    Tbe court made findings of fact, which are not challenged on appeal. It appears that Isom Green took out an accident policy with tbe appellant on May 16,-1918, for one year, and renewed it on May 16,1919, for one year. Tbe appellant issued a number of policies to tbe employees of tbe Texas & Pacific Railway Company, and tbe premiums were paid by deductions by tbe railway company against the wages of tbe employees. Tbe appellant company bad made arrangements with tbe railway company by which tbe orders given by the employees, including Isom Green, were accepted by tbe railway company. Isom Green made application on tbe blanks of tbe appellant for renewal of tbe policy in suit, which, as material here, stated:
    “I agree to pay for my said policy an annual premium of $22.00 in three installments of $7.60 each. If paymaster’s order is given to provide for the payment of these installments I agree to pay them as therein provided and do hereby make such order a part of my contract with the company. If no paymaster’s order is given the installments shall be due without notice each succeeding month until all are paid. I agree that if any payment be not made by 12 o’clock noon standard time 6f the day when due all my rights under said policy and the rights of the beneficiary thereunder shall then and thereby become void, and that my pobcy can be reinstated only at the option of the company and as provided in the policy, and that no claim for loss arising between the time of such forfeiture and reinstatement shall be good against the company.”
    The policy of insurance provides, as material here, that—
    “The application herefor and any paymaster’s order given to provide for the payment of premiums are hereby made a part hereof. If any premium shall not be paid when due its subsequent acceptance shall be optional with the company at its office, and if accepted the policy shall be reinstated thereby to date from 12 o’clock noon of the day following its receipt and acceptance. Any unpaid portion of the annual premium may be deducted from any claim hereunder. Strict compliance on the part of the insured and beneficiary with all of the provisions of this pobcy is a condition precedent to recovery hereunder, and any failure in this respect shab forfeit to this company all right to the principal sum and indemnity.”
    Isom Green at tbe time of renewal of tbe policy gave an order against bis employer, the Texas & Pacific Railway Company, directing the paymaster to deduct from bis wages tbe amount of $22 in three monthly installments: $7.50 from tbe July wages, $7.50 from tbe August wages, and $7 from tbe September wages. Tbe appellant accepted the order and continued tbe policy in effect. Tbe order reads as follows:
    “To the Paymaster of my Employer: I have this day made application to the Continental Casualty Company (hereinafter cabed the company) for a policy of insurance. This order is given to provide for the payment of the premium thereon which you are authorized and requested to deduct from my wages in instab-ments as hereafter designated, pay to the company for me, and charge against my pay account for services rendered to my employer on whom this order is drawn. If for any reason whatever you fail to make deduction of any in-stabment from the wages of the period hereinafter designated for that purpose, you are further authorized and requested at the option of the company to deduct and pay the defaulted installments from any of my subsequent wages.
    “I understand and agree as to the duration of my said insurance: (1) That my said policy after taking effect so -continues until the expiration of the period hereinafter designated for the deduction of the last instabment of premium unless I sooner cease to be .in the service of my present employer, or.unless default be made in the payment of any prior in-stabment, in either of which events my insurance shab at once terminate without notice, except as it may be continued in force by reason of premium previously paid; (2) that the payment of each instabment in which the said premium is payable shab continue my policy in force for a period of two months, all such periods to be computed successively from the date of the policy; (3) that the paymaster is my agent for the purpose of deducting these installments from my wages, and his action in that regard is entirely at my risk; (4) that should my policy lapse at any time by reason of nonpayment of any instabment and premium afterwards be paid, then such payment shab reinstate my policy as provided herein.
    “I also agree that if my wages are paid to me more often than once a month, then each instabment, instead of being deducted and paid from a month’s wages as herein provided, is to be deducted and paid from that part of the month’s wages * * * payable to'me;
    
      “The amount of said premium is $22.00, and I have agreed to pay it in two installments as follows: $7.50 from my wages for the month of July, 1919; $7.50 from my wages for the month of August, 1919; $7.00 from my wages for the month of September, 1919.
    “I understand no agent of the company has any authority or power to waive or change any of the printed provisions hereof.
    “My employer is the Texas & Pacific Bail-way Company, department head B. E. Boe, my occupation is brass founder; I am employed at Marshall; my time is kept at Marshall, Division Marshall Shops. Dated at Marshall the 16th day of May, 1919. [Signature] Isom Green.”
    The railway company had two pay days each month, about the 15th and SOth, respectively. The wages of the employees for the first 15 days of the month were payable on the pay day occurring about the SOth of the month, and the wages that accrued on the last 15 days of the month were payable on the pay day occurring about the 15th of the following month. The wages due Isom Green for the first half of July, 1919,,were payable about July 30, and the same were paid to him by cheek by the railway company. The wages of Isom Green for the second half of July were due on August 15, 1919. Isom Green was killed August 7, 1919.
    Prendergast & Prendergast, of Marshall, for appellant.
    Davidson & Blalock, of Marshall, for ap-pellee.
   LEVY, J.

(after stating the facts as above).

The court concluded:

(1) “That the defendant under the order for wages had no right to demand the money due upon the premium until the middle pay day in August, 1919, which was eight days after the death of Isom Green,” and (2) “that the policy of insurance at the time of Isom Green’s death had not lapsed and was in full force and effect.”

Appellant challenges the court’s conclusions and insists that the policy had lapsed at the date of the death of the insured. It is believed that the evidence fully supports the court’s conclusion and the judgment in favor of the plaintiff. The insured agreed to pay the premium for the insurance as follows:

“The amount of said premium is $22.00, and I have agreed to pay it in three installments as follows: $7.50 from my wages for the month of July, 1919; $7.50 from my wages for the month of August, 1919; $7.00 from my wages for the month of September, 1919.”

There is no particular day of the month that the payment is to be made. The “deduction and payment” was merely to be “from my wages for the month of July, 1919.” A failure to pay the July installment out of the first pay day of July would not operate to forfeit the policy under the terms of the deduction order which wás accepted by the appellant. There would be “wages for the month of July, 1919,” so long as any wages were due the insured by the railway company for the month or any portion of the month of July, 1919. And the record admits that “the wages due Isom Green for the last of July were payable about August 15, 1919,” according to the system of bookkeeping by the railway company, and in the light of which the deduction orders were given and accepted. If the wages mentioned were not payable to the insured until that date, the appellant, having an order therefor, could not collect same until that date from the railway company. The insured died, it conclusively appears, before the latter half of his “July wages” were payable.

The judgment is affirmed. 
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