
    BANKERS’ RESERVE LIFE CO. v. ELLISON.
    
    (Court of Civil Appeals of Texas.
    Feb. 1, 1911.
    Rehearing Denied March 8, 1911.)
    1. Insurance (§ 675) — Action on Policy —Penalty and Attorney’s Fees — Conditions Precedent.
    In the absence of proof of demand of payment of a life policy prior to ■ bringing suit thereon, plaintiff was not entitled to recover any penalty or attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1805, 1806; Dec. Dig. § 675.]
    2. Appeal and Error (§ 843) — Review — Questions Considered — Necessity.
    The court, on appeal, will not pass on a question of want of consideration of a release, where the evidence shows it was procured by duress; a verdict being authorized on either ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§. 3331-3341; Dec. Dig. § 843.]
    Appeal from District Court, McLennan County; Marshall Surratt, Judge.
    Action by Maud Ellison against the Bankers’ Reserve Life Company. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    Prendergast & Williamson, for appellant. E. C. Street and Alva Bryan, for appellee.
    
      
       Writ of error denied by Supreme Court April 5, 1911.
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   KEY, C. J.

Appellee brought this suit against appellant, seeking to recover $1,250, alleged to be a balance due on a contract of insurance for $2,500. She also sought to recover 12 per cent, as damages and $500 attorney’s fees.

The defendant answered by general demurrer, general denial, and a special plea, alleging that the defendant was not liable on account of a breach of certain warranties on the part of the plaintiff’s husband, whose life was insured, and also because of a compromise and settlement, wherein the defendant had paid the plaintiff $1,250, and she had released the defendant from all further liability. The plaintiff filed a supplemental petition, contesting the matters pleaded as a defense by the defendant, and asserting that the release pleaded by the defendant was without consideration, was not the voluntary act of the plaintiff, but was procured by duress by an agent of the defendant, who falsely and fraudulently represented to the plaintiff that her deceased husband was and had been addicted to the excessive use of intoxicating liquors, and was an habitual drunkard and sot; that he had represented to the contrary in his application for insurance, and that for that reason the entire policy was void, and that if the plaintiff did not compromise the matter the defendant’s physicians and surgeons would, on the following morning, disinter the remains of her husband and perform a post mortem examination thereon; that the representations, statements, and threats referred to were made to the plaintiff at her home a very short time after the death of her husband; that the plaintiff was a farmer’s wife, unlearned in the law, and had no opportunity of conferring with an attorney or any one capable of advising her what to do; that she was confronted with the alternative of accepting $1,250 offered by said agent in settlement of the entire claim, or else suffering the humiliation and disgrace of having the remains of her husband disinterred and a post mortem examination made thereon by the defendant’s surgeons, and that because of such threat and in order to prevent that result, she agreed to and did accept the $1,250 tendered, and executed the release pleaded by the defendant, although she believed that the defendant owed her $2,500. She also alleged that for the reasons stated her act in accepting the $1,250 and executing the release was not her voluntary act, and that the same was null and void. The defendant filed a supplemental answer, which contained a general demurrer and numerous special exceptions to the plaintiff’s supplemental petition. It also contained a general' denial. The plaintiff filed a trial amendment, the contents of which it is not necessary to here state. The defendant filed a second supplemental answer, the contents of which need not be here stated. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $1,250, together with 12 per cent, thereon as damages and $200 as attorney’s fees, and the defendant has appealed.

The trial court submitted the case to the jury upon a charge which, except as to penalty and attorney’s fees, was substantially correct and free from objection on the part of appellant, and for that reason we overrule the numerous assignments of error which complain of the charge and of the refusal of requested instructions, except those presenting the question of the right to recover penalties and attorney’s fees. As to the latter, we sustain appellant’s contention, and hold that, as there was no proof of any demand of payment made upon appellant prior to bringing the suit, appellee was not entitled to recover any penalty or attorney’s fees. In that respect the case1 is not distinguishable from Mutual Life Ins. Co. v. Ford, 130 S. W. 769, and the opinion of Special Chief Justice Patterson in that case is here referred to and approved, as well as the opinion of Special Chief Justice Harris of the 'Supreme Court, which was rendered upon the refusal of the writ of error in that case.

Under several assignments of error counsel for appellant have assailed the verdict of the jury; the contention being that it is not supported by testimony. The court instructed the jury that the settlement which the plaintiff had made with the defendant, and the release she had executed, was binding upon her.and would preclude any recovery, unless it was made to appear that there was no consideration therefor, or that the defendant’s agent had put the plaintiff in ■ such duress, in the manner pleaded hy her, as to render her assent to the settlement and execution of the release an involuntary act on her part, and not an expression of her own free will. That instruction was correct; and we do not know upon which branch of the case the jury based their verdict. But there is testimony in the record which supports the verdict on the theory of duress; and we therefore find as a fact that the evidence sustains the plaintiff’s plea of duress. This renders it unnecessary for this court to paá’s upon the question of want of consideration.

Appellant’s brief contains over 100 pages, manifesting great industry and research, and disclosing the fact that every possible defense has been urged in this court, as well as in the court below. It would consume too much time, and unnecessarily delay consideration of other cases pressing for decision, for this court to discuss in detail all of the questions presented in the briefs. Suffice it to say that they have all received consideration in the consultation room, and the conclusion has been reached that no reversible error has been pointed out, except that already adverted to.

That portion of the judgment awarding appellee $150 as a penalty and $200 as attorney’s fees will be set aside and reversed, and appellee’s recovery limited to $1,250, with 6 per cent, interest thereon from the date of the judgment in the trial court, and, as thus reformed, the judgment will be affirmed.

Reformed and affirmed.  