The Praetorians v. Redmon

BROWN, Justice.

The appellee, Mrs. Eula E. Redmon,-recovered a judgment against appellant, The Praetorians, on an insurance policy written on the life of her husband.

Plaving appealed from such judgment, we find one proposition in appellant’s brief, as follows:

“It is the duty of the trial court to construe the contract the parties have entered into in plain and unambiguous language according to its provisions, and it is error for the court to make for the parties another and different agreement or to give one of them advantages not authorized or contemplated by the contract. (Germane to Assignments of Error Nos. 1 to 5 inc.)”

The so-called proposition is a mere “abstraction,” and does not point out the action of the court and the error committed. _ Furthermore, it is multifarious and connects the two matters, thus too generally complained of, disjunctively.

We do not feel that it is our duty to consider the proposition. Lamar-Delta County Levee Dist. v. Dunn (Tex.Com.App.) 61 S.W.(2d) 816.

We find five assignments of error in the brief, as follows:

“1. The court erred in rendering judgment for the plaintiff, Mrs. Eula Redmon, because under the undisputed evidence, agreed statement of facts and the contract of insurance she was not entitled to recover in any amount in excess of $82.31. (Tr. p. 12.)

“2. The court erred in reading into the contract of insurance sued upon provisions that were not there, so as to permit the plaintiff, Mrs. Eula E. Redmon, to recover.

“3. The court erred in rendering judgment for the plaintiff, Mrs. Eula E. Red-mon, for double the face of the contract of insurance under the Double Indemnity Clause, for the reason that under the undisputed evidence and agreed statement of facts the contract of insurance had lapsed and the Double Indemnity. Clause was not applicable, and the plaintiff was not entitled to recover thereunder. (Tr. p. 12.)

“4. The court erred in applying the reserve for a portion of the sixth policy year to the payment of premiums, because under the contract in evidence the plaintiff was entitled to no application of any accumulated reserve before the end of a policy anniversary or year.

“5. The court erred in applying the accumulated reserve on the contract of insurance after lapse of the contract, which had accumulated during a portion only of a contract year or anniversary, to the payment of monthly premiums to keep the full face of the contract in force as long as such reserve would carry it, when under the plain terms of the contract of insurance the application of such reserve to the purchase of extended insurance, if any the plaintiff was entitled to, should have carried the face of the contract reduced in proportion as the debt due bears to the total reserve, for a definite period of time, not less than five nor more than six years. (S.F., Ex.B.)”

The only “statement” found in the brief follows the above-mentioned “proposition,” and is as follows:

“This cause comes to this Honorable Court on an agreed statement of the case and involves essentially but one question, towit, the construction of a portion of a contract of insurance under the head of ‘Non-Forfeiture Privileges.’

“It is admitted:

“(a) That the insured had borrowed the entire loan value of the policy up to and as of May 28, 1933, the end of the fifth anniversary of the policy, thus completely depleting the reserve as of that date. (S.F., p. 7, Ex.B, Table of Non-Forfeiture Values.)

“(b) That the premiums were paid to September 1, 1933, and none thereafter, and on which date the policy lapsed for non-payment of premiums. (S.F., pp. 2, 4 and 5.)

“(c) That the insured died on October 11, 1933, (S.F. p. 3), at which time the policy was lapsed for non-payment of premiums for September and October, 1933. (S.F., pp. 4 and 5.)

“(d) That the policy contains the following provisions under the head of ‘Non-Forfeiture Privileges’:

“ ‘Non-Forfeiture Privileges.’

“ ‘Within one month after any anniversary date thereof, or at any time within thirty days after default in the payment of dues, and after two full years’ dues shall have been paid hereon, the insured shall be entitled to select one of the following surrender options:

“ ‘Option 1. Surrender the certificate for its cash value.

“ ‘Option 2. Surrender the certificate for paid-up life insurance.

“ ‘Option 3. Have the certificate endorsed as extended term insurance.

“ ‘The values under each option are shown in the table below if there is no indebtedness against this certificate. Any indebtedness will be deducted from the cash value if option 1 is selected, and will reduce the amounts under either option 2 or 3 in the proportion that the indebtedness bears to the cash value, but the extended term period will remain the same as set out in the table. When the total indebtedness exceeds the cash surrender value of this certificate all values hereunder shall automatically cease and this contract will be of no further force or effect.

“ ‘Option 3 shall become effective automatically in the event the insured fails to make a selection during the sixty days after default in payments.

“ ‘Extended insurance when effective shall date back to and extend from the first of the month when default occurred, and no accident or disability benefit shall be available under such paid-up or extended insurance.

“ ‘Table of Non-Forfeiture Values.

“ ‘The loan values in the table for any year set opposite are available any time during the year if all dues for said year have been paid. All other values apply as of the end of the year.’ ”

In the first place, this is not such ¡ a “statement from the record” as is nec- • essary to point out what took place in the trial court and why such action constitutes error. We are not called upon to search the entire record to see what was done on the trial and whether or not the trial court erred. It is the duty of the appealing party to distinctly set forth what he considers was error committed by the trial court, and to support such “point,” or “proposition,” by a clear statement from the- record which will disclose that the matter complained of occurred on the trial. The entire “statement,” when read word for word, does not advise us what the trial court did that is supposed to be erroneous.

Furthermore, the “statement” is not a correct statement, in that the appellant asserts that it is. “admitted” that: “On which date (September 1, 1933) the policy lapsed for non-payment of premiums. (S. F. pp. 2, 4 and 5.)” An examination of the statement of facts as to the pages cited for the “admission” discloses that no such admission was made.

In the succeeding paragraph, appellant states that “it is admitted” that: “At which time (October 11, 1933) the policy was lapsed for non-payment of premiums for September and October, 1933. (S. F., pp. 4 and 5.)” An examination of the statement of facts as to the pages cited for the “admission” discloses that no such admission was made.

We decline to consider assignment of error No. 1, because appellant’s brief does not contain a statement from the record showing that “under the undisputed evidence, agreed statement of facts and the contract of insurance she (Mrs. Red-mon) was not entitled to recover in any amount' in excess of $82.31.”

We decline to consider assignment of error No. 2 because appellant’s brief does not contain a statement from the record showing that the “trial court read into the contract of insurance sued upon provisions that were not there, so as to permit the plaintiff, Mrs. Eula E. Redmon, to recover.”

We decline to consider assignment of error No. 3, because appellant’s brief does not contain a statement from the record showing that the “trial court rendered judgment for the plaintiff for double the face of the policy and that such judgment is erroneous because under the undisputed evidence and agreed statement of facts the contract of insurance had lapsed, and the double indemnity clause was not applicable, and plaintiff was not entitled to recover thereunder.”

We decline to consider assignment of error No. 4, because appellant’s brief does not contain a statement showing that “the trial court applied the reserve for a portion of the sixth policy year .to the payment of premiums, erroneously, because under the contract in evidence the plaintiff was entitled to no application of any accumulated reserve before the end of a policy anniversary or year.”

We decline to consider assignment of error No. 5 because appellant’s brief does not contain a statement from the record showing that the trial court committed the acts complained of, or that, under the terms of the insurance contract, the plaintiff was only “entitled to the face of the contract reduced in proportion as the debt due bears to the total reserve, for a definite period of time, not less than five nor more than six years.”

Much complaint is now made and has been made, since Shakespeare uttered his immortal indictment, of “the law’s delay.” Every brief presented to an appellate court should be so complete that the specific matter complained of is immediately brought to the attention of the court by a clear “statement,” and the references to the record so made that the “statement” may be quickly verified, if occasion requires verification.

Appellate courts should not be compelled to read the entire record under each assignment of error, in order to ascertain whether or not the assignment of error is supported by the record.

Finding no fundamental error, the judgment of the trial court is affirmed. Freeman v. Bennett (Tex.Civ.App.) 195 S.W. 238, writ refused; First Nat. Bank v. Hardtt (Tex.Civ.App.) 204 S.W. 712, writ refused; Dubois v. Lowery (Tex.Civ.App.) 205 S.W. 858, writ refused; Prince Line, Ltd., v. Steger (Tex.Civ.App.) 210 S.W. 223, writ refused.