Bunnell v. Republic Bankers Life Insurance Co.

497 S.W.2d 338, 1973 Tex. App. LEXIS 2845
CourtCourt of Appeals of Texas
DecidedJune 27, 1973
DocketNo. 12019
StatusPublished
Cited by1 cases

This text of 497 S.W.2d 338 (Bunnell v. Republic Bankers Life Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bunnell v. Republic Bankers Life Insurance Co., 497 S.W.2d 338, 1973 Tex. App. LEXIS 2845 (Tex. Ct. App. 1973).

Opinion

O’QUINN, Justice.

An earlier phase of this case was before this Court in 1972 on the question of venue, and was returned to Tom Green County for trial on the merits. (478 S.W.2d 800)

Appellant Pat Bunnell brought suit as independent executor under the will of Patricia M. Bunnell, deceased, to recover benefits claimed under a sickness and accident policy issued to deceased by appellee, Republic Bankers Life Insurance Company.

Trial was before the court, in the main upon the pleadings and stipulations of the parties. The trial court, entered judgment in September of 1972 that plaintiff take nothing in his suit to recover under the policy but recover $60 as return of unearned premium.

Appellant brings one point of error: “The trial court erred in holding that Pat Bunnell is not entitled to benefits under the sickness and accident policy issued by Republic Bankers Life Insurance Company.”

We will affirm judgment of the trial court.

The insured, Patricia M. Bunnell, made application in May of 1969 for a sickness and accident insurance policy with Republic Bankers Life. The policy was issued for an initial term of one year, with an effective date of June 1, 1969, and renewed thereafter for an additional term ending June 1, 1971. The insured died on September 17, 1970.

The application upon which the policy issued stated, in response to inquiry as to “Disease, Ailment or Injury,” that the applicant had “DIABETES (EYE).” The application gave the date of the disease as “Jan 1969” and the name of a doctor in Houston, Texas.

The record discloses that the insured received medical treatment in a hospital for “diabetes mellitus” on seven occasions during a period beginning February 13, 1969, and ending with her death in a hospital in September of 1970. The insurance policy was in force from June 1, 1969, until insured’s death.

Pat Bunnell, father of the insured, brought this suit as independent executor to recover benefits claimed under the insurance policy for hospital confinements of eleven days commencing December 27, 1969, more than six months after the effective date of the policy, and for confinements in 1970 of twenty-four days commencing March 8, eighteen days commencing July 14, and twenty-eight days commencing August 20. The executor did not sue for hospitalization commencing June 18, 1969, and September 11, 1969, which confinements were within the first six months after June 1, the effective date of the policy. The executor also sued to recover $60 unearned premium.

The insurance policy provided that Republic Bankers Life insured the applicant, and would “. . . pay, subject to all provisions and limitations herein contained, the benefits provided herein for expense of hospital confinement commencing while this Policy is in force or other specified [340]*340expense incurred while this Policy is in force by the Insured . (b) Resulting from sickness, the cause which originates after effective date of this Policy and while this Policy is in force and any disease stated by the applicant in the attached copy of application which occurs after this Policy has been in force for six months . . . and subject to all the provisions and limitations hereinafter contained.” (Emphasis supplied)

It is undisputed that the insured, who was thirty-three years of age when she applied for the policy of insurance in 1969, had been afflicted with diabetes mellitus since she was a child eleven years old.

The policy contained “Limitations and Exclusions” which provided that:

“No indemnities whatsoever shall be payable under this Policy for any loss or disability caused or resulting wholly or partly from or in, or contributed to by:

“. . . 3. any sickness or disorder involving the following unless the cause thereof originates after this Policy has been in force for the preceding six (6) months: any type of cancer, hernia, metastasis, or surgical operations or procedures, and/or sickness, disease or incident involving the metabolism, ... or any disease . . . stated by the applicant on the attached copy of the application which is not otherwise excluded from coverage by name or description ... 5. expenses in connection with any sickness contracted that is excluded in paragraph 3 . shall be covered after this initial period, after the expiration of any subsequent six (6) month period during which the Insured receives in connection with such sickness neither (1) medical, surgical, hospital, or nursing treatment or service of any kind, nor (2) any drugs or medicines lawfully obtained only upon the prescription of a Medical Doctor or Doctor of Osteopathy . . .” (Emphasis supplied)

The parties stipulated that “diabetes mel-litus is a disease of the metabolism.”

The trial court, upon request of appellant, filed findings of facts and conclusions of law, to which no objection or exception was made thereafter by either party.

The facts found by the court were: (1) insured was hospitalized eleven days commencing December 27, 1969, twenty-four days commencing March 8, 1970, eighteen days commencing July 14, 1970, and twenty-eight days commencing August 20, 1970; (2) the diabetes mellitus for which insured was hospitalized on these four occasions did not originate after June 1, 1969, the effective date of the policy; (3) the diabetes mellitus for which insured was hospitalized on these four occasions did not occur after the policy had been in force for six months; (4) the diabetes mellitus for which insured was hospitalized on these four occasions did originate prior to December 1, 1969, that is, the disease originated prior to six months after date of the policy; and (S) there was no six-month period subsequent to the initial six-month period during which insured received in connection with her diabetes mellitus neither (a) medical, surgical, hospital, or nursing treatment of any kind, nor (b) any drugs or medicine lawfully obtained only upon prescription of a medical doctor or doctor of osteopathy.

The trial court’s conclusion of law was that appellant, as plaintiff below, was not entitled to recover benefits under any of the provisions or terms of policy for hospitalization on the four occasions mentioned, commencing December 27, 1969, and ending in September, 1970, when death occurred. The four periods of hospitalization were the same periods for which appellant sought to recover benefits under the policy.

Appellant’s single point of error, that the trial court erred in holding that appellant was not entitled to recover benefits under the policy, is so general as not to comply with the rule requiring that points of error direct the attention of the court to the error relied upon. Rule 418, [341]*341Texas Rules of Civil Procedure; McWilliams v. Muse, 157 Tex. 109, 300 S.W. 2d 643, 646 (1957). We are permitted, however, to apply a liberal rule to the construction of points and to pass on both the sufficiency and the merits of the point, “in the light of the statement and argument” presented in the brief, to determine the question of reversible error. Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 132 (1961), following the rule of Fambrough v. Wagley, 140 Tex. 577,

Related

Don's Ambulance Service, Inc. v. City of San Antonio
526 S.W.2d 547 (Court of Appeals of Texas, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
497 S.W.2d 338, 1973 Tex. App. LEXIS 2845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bunnell-v-republic-bankers-life-insurance-co-texapp-1973.