
    FEDERAL LIFE INS. CO. OF CHICAGO v. KRITON.
    (No. 406-3754.)
    
    (Commission of Appeals of Texas, Section A.
    March 21, 1923.)
    1. Appeal and error <@=>65—“Interest,” in statute confining jurisdiction of Court of Civil Appeals on cases originating in justice court to amounts exceeding $100, is interest given by statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1589, confining jurisdiction of the Court of Civil Appeals tq cases originating in justice court in which “the judgment, or amount in controversy, or judgment rendered shall exceed $100, exclusive of interest and cost,” by “interest” is meant interest expressly given by statute, frequently designated as interest eo nomine, and not interest allowed as damages or indemnification.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interest.]
    2. Interest <@=>19(2)— Allowable from time sum is due in contracts ascertaining the “sum páyable.”
    Liberally construed, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4977, providing on all contracts “ascertaining the sum payable” interest shall be allowed from the time the sum is due and payable, “ascertaining the sum payable” has reference to the sum the party executing the contract may be reasonably expected to pay, in view of all circumstances, if at any time he becomes liable to pay, and it is not necessary that the contract itself establish a fixed liability in definite amount as of a certain date, if liability can be ascertained with reasonable certainty.
    3. Appeal and error <&wkey;65—Interest on recovery on indemnity policy not considered as damages relative to amount in controversy. In view of Vernon’s Sayles’ Ann. Civ. St. 1914, ‘art. 4977, relating to interest on con-
    
      Certified Questions from! Court of Civil Appeals of Second Supreme Judicial District.
    Action by George Kri'ton against- the Federal Ufe Insurance Company of Chicago. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.
    Moses, Rowe & Braly, of Fort Worth, for appellant.-
    Burns, Christian, Gumm & Gordon, of Fort Worth, for appellee.
    
      
       Rehearing denied April 18, 1923.
    
   GERMAN, J.

This ease comes to the Supreme Court on certified questions from the Court of Civil Appeals for the Second Supreme Judicial District.

Appellee, George Kriton, filed suit in the justice court oí precinct No. 1, Tarrant county, against the Federal Life Insurance Company, on a disability policy which provided for the payment at the rate of $25 per week for one day or more, in case of confining illness and total disability, and further provided for the payment of $25 for an'operation for varicocele, if weekly indemnity for illness should amount to as much as $50. Appellee alleged that on account of illness he was totally disabled and under the treatment of a physician for three weeks, for which- he claimed $75, and that he had undergone an operation for varicocele,- for which he claimed $25. He prayed for “judgment for $100, with costs of suit, and such other and further relief in law and equity as he may be justly entitled to.”

In the justice court appellee recovered judgment for $100, with interest at 6 per cent, from date of trial, and on appeal to the county court judgment was rendered in his favor for $100, with 6 per cent, interest from date of trial in the justice court.

- The ease is pending in the Court of Civil Appeals on a motion to dismiss for want of jurisdiction, and that court has certified for answer the following questions:

“(1) In the instant case, is the interest included in the judgment interest eo nomine or interest as damages?
“(2) Even though you should hold that the interest is not interest eo nomine, but as damages, would we be authorized, in view of the failure of the plaintiff in the court below to specifically pray for interest, to require a re-mittitur as a condition of the dismissal.of the writ of error?”

The-jurisdiction of the Court of Civil Appeals -as to cases originating in the justice' court is confined to cases in which “the' judgment, or amount in controversy, or the judgment rendered, shall exceed one-hundred' dollars, exclusive of interest and costs.” Article 1589, Vernon’s Sayles’ Texas Civil Statutes.

The ‘‘interest” meant by the foregoing, provision is interest expressly given by stats,, ute, frequently designated as interest eo no-mine, and not interest sometimes allowed as part of the damages or by way of indemnification. Baker v. Smelser, 88 Tex. 28, 29 S. W. 377, 33 L. R. A. 163. To state the question' concisely: If the interest allowed in the present case is interest eo nomine, the Court of Civil Appeals has no jurisdietidn of the case.

If interest, as such, is allowable in the present case, it 'is by virtue of article 4977 of the statute, which is as follows:

“On all written contracts ascertaining the, sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent, per annum from and after the time when the sum is due and payable.”

The real question for decision is this: Is the written contract in this case one “ascertaining the sum payable,” as meant by the statutes? Appellant contends that it is not, because it became necessary for appellee, among, other things, to show by proof whether or not his-sickness was confining, the num-. ber of days or weeks he was confined by such illness, whether constantly under a doctor’s care or not, and that the illness was not one excepted under the terms of the policy, and that he had actually undergone an operation of the character claimed by him. In other words, it is appellant’s contention that it became necessary to go outside the contract in order to definitely ascertain the sum payable. He relies on the cases of McNeill v. Casey (Tex. Civ. App.) 135 S. W. 1130; Moser v. Tucker (Tex. Civ. App.) 195 S. W. 259; Bell v. Gerlach (Tex. Civ. App.) 205 S. W. 470; Robinson v. Lingner (Tex. Civ. App.) 183 S. W. 850.

No case squarely presenting the precise question to be determined has reached the-Supreme Court. If the question has been considered by that court, it was so considered in passing on the petition for writ of error in Carter Grocer Co. v. Day (Tex. Civ. App.) 144 S. W. 365, which petition was dismissed for want of jurisdiction. In addition to that case, the cases of Great Eastern Casualty Co. v. Anderson (Tex. Civ. App.) 183 S. W. 802; American National Insurance Co. v. Fulghum (Tex. Civ. App.) 177 S. W. 1008: Nueces Hotel Co. v. Ring (Tex. Civ. App.) 217 S. W. 255; Escue v. Hartley (Tex. Civ. App.) 202 S. W. 159; and Ewalt v. Holmes (Tex. Civ. App.) 165 S. W. 89—involved written contracts somewhat similar to the one under consideration here, and they were held to be such as were meant by the statute.

We have reached the conclusion that the contract in this case is one “ascertaining the sum payable” in contemplation of the statute. The conditions and requirements suggested by appellant’s counsel as making the sum payable under the contract uncertain relate more to the question of liability or the time actual liability attaches, rather' than to the amount payable, if liability existed. Giving to the statute a liberal interpretation, as we think should be done, it is_ our opinion that the words “ascertaining the sum payable” have reference to the sum or amount the party executing the obligation may be reasonably expected or required to pay, in view of all the circumstances incident to the matter or business he is contracting about, if by reason of .the provision of the contract he becomes at any time liable to pay' thereunder; and'it is not necessary in a ease like the present one that the contract shall itself establish a fixed liability in a'definite amount as of a date certain. It is sufficient to come within the meaning of the statute if the contract provides the conditions upon which liablity depends and fixes a measure by which the sum payable can be ascertained with reasonable certainty, in the light of the attending circumstances; We think the statute should be construed as applying to contracts where, in case of liability arising from contingencies occurring after its execution, the obligor is furnished the means or opportunity of acertaining with reasonable certainty the extent of liability or the sum he may be expected to pay.. The contract under consideration is of that kind. There is no uncertainty as to the indemnity contracted for. The policy no doubt made adequate provisions by which the insurance company was advised, by such proof as was required by it, of the extent it was called upon to make good its contract of indemnity. The measure of liability is accurately provided by the policy. When once the extent of such liability is established, by the proof required to be submitted under the terms of the policy, or by judicial determination of that question, the result is exactly the same. Interest would follow as “damages,” regardless of the statute, or it follows by reason of the statute. “Interest” is defined by statute to be “compensation allowed by law or fixed by the parties to a contract for the usé or forbearance or detention of money.” In the present instance, when the full sum payable under the policy was .definitely ascertained, by the trial in the justice court, or in the county court (if the required proof had not theretofore been furnished), as long as the same remained unpaid there was a “detention of money,” and the statute attached to the obligation the condition, that it should bear the legal rate of interest. The company had the right to contest the question of ultimate ability, but such contest did not change the nature of the obligation. It might have defeated all liability, but if it did not, then there is additional equity in the requirement of the statute that interest shall be allowed on the amount payable.

The interest allowed by the judgment was an integral part of. the principal obligation by reason of the statute, and was not damages.

We therefore answer to question No.’'l that such interest was interest eo nomine.

This .makes it unnecessary for us to answer question No. 2.

CURÉTON, C. J. The opinion of the Commission of Appeals 'answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
      <@=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tracts, the Court of Civil Appeals, under article 1589, confining jurisdiction to cases originating in justice court in which the amount in controversy shall exceed $100 excluding interest , and costs, Has no jurisdiction of appeal in action originating in justice court and based on a disability policy where the judgment was for $100 with interest at 6 per cent., since there was no uncertainty as to the indemnity contracted for and the company’s liability was accurately provided for when once the extent of such liability was' established by proof, and hence interest could not be considered as damages so as to avoid the effect of the statute, but was interest eo nomine.
     