#### AMERICAN BENEFIT ASSOCIATION, Appellant, v. Oral J. RUSSELL, Appellee.

No. 6427.

Court of Civil Appeals of Texas. Amarillo.

Sept. 27, 1954.

Rehearing Denied Nov. 8, 1954.

*317Carl G. Edwards, Amarillo, for appellant.

Rogers & Thompson, Pampa, for appellee.

MARTIN, Justice.

Appellee-,■ .Oral J. Russell, as plaintiff in the trial court, sued appellant, American Benefit Association, as defendant, for hospital ' expenses arid benefits alleged to be due him undér a hospitalization policy issued by appellant. The hospital expenses were incurred during January and February, 1953 and appellant’s defense to the suit was that the policy had been cancelled on December 1, 1952 as provided by its terms. Judgment was rendered for plaintiff in the amount of $400.44 and appellant perfected an appeal.

The appeal is based on three points of error. Appellant’s first point of error is that the appellee’s petition is insufficient to state a cau;se of action in that it does not allege that the policy was cancelled during a period of disability for which the company was liable. Appellant’s second point of error is that, the court erred in holding that the policy was wrongfully cancelled and in rendering judgment against appellant because, under. the terms of the policy, appellant had a right to refuse to accept further premiums .on the policy and to cancel the same on December 1, 1952. Appellant’s third point of error is that the facts do not bring the case within the exception in the policy that states “the Association cannot cancel ■ the policy during any period of disability for which the Association is liable”. • ■

As revealed by appellant’s brief, and also by the record, only two p.rovi^ipns of the hospitalization policy are material- to this appeal. The material.. elements , of such provisions are as follows:; . • ; ....

> “If the insured or any dependent; on ' account of any injury or sickriess-origi-nating during any term" of this policy shall be necessarily confíri'ed"ivíthin a licensed hospital, the Association shall reimburse the insured,-of will pay-the hospital * ****. ‘ " : !'r.

> “The Association- cannot cancel this ■ policy * * * during any period of disability, for which the Association - . is liable.” ' ¡ , .

On a trial of the causé; the''.facts were stipulated by the parties' and': priiy' such facts ás are ináterial tó' a détérrriihatioh of the appeal are quoted here:

> “* * * that said policy, together . with the amendments thereto,; was . in full force and effect to December 1, ; 19S2‘ . *;■*:- ;

> “Thát in April, 1952,' the'Plaintiff,' Oral J. Russell, sustained'á''disability and loss covered by this policy, and that such disability wás cóñtiriuous be- ' tween the periods of April; 1952 and February 25, 1953. : ’ ■ '''" '■

> “That the sickness for* :vrhich.- the¡ plaintiff was operated on -in January and February originated sometime during April, 1952 ; * * - •

Since appellant’s first point of error questions the sufficiency, .o-f plaintiff’s pleadings in the cause, excerpts, will be quoted from the petition insofar.as-the same are pertinent to the cause of action. “Plaintiff further shows unto the court that :on the dates hereinafter noted, he sustained hospital, medical, and surgical expenses the cause of which originated during the term of this policy; * * ’ *” -Thehospital expenses are shown in the petition' -as ac*318cruing from January; 13, 1953. to January 31, 1953 and from February 21, 1953 to February 25, 1953 at Highland General Hospital: “Plaintiff alleges- that the above expenses were incurred by him caused by' a surgical operation in which plaintiff’s gall bladder was removed and which was performed on him by Dr. Frank W. Kelly of Pampa, Gray County, Texas and that such gall bladder trouble, the cause of such hospital expenses, originated on or about the 20th of April, 1952 while this policy was in full force and effect. * * * and in this connection, plaintiff shows that the illness and sickness causing the damages and expenses herein sued for, is a continuing disability- and thát under the policy contract, this 'defendant may not lawfully cancel said-policy during the continuation of such disability 1⁄8 * A'ppellée’s petition sufficiently pleads the issues material to his cause of action under the provisions of the hospitalization policy here in issue.

The agreed statement of facts reveals that the illness resulting in the hospitalization of appellee during the months of January and February, 1953 originated April, 1952. when the policy of insurance issued by ■ .appellant. was in full force and effect. Therefore, under the terms of the policy issued- by appellant, it could not avoid liability for such hospital expenses by can-celling the policy December 1, 1952 as ap-pellee’s illness and necessary confinement in the hospital on account of such illness originated during the term of the policy. Under the express provision of thé policy as quoted hereinabove, the association was required to reimburse the insured for the actual hospital expense incurred by appel-lee on -account of any sickness originating during' any term of the policy. It also follows, under the’ provisions of the policy, that since the -association was liable for the period of disability in issue, it could not cancel- the policy and thereby defeat liability.

The rule governing the issues on this appeal was promulgated by the Court of Civil Appeals in National Life & Accident Ins. Co. v. Dove, 167 S.W.2d 257, 259, in the following language: “It follows that the * * * illness found by the court began prior to the cancellation of the policy, and, therefore, constituted a claim under the policy, and was of the nature plead by appellee.” Judgment of Court of Civil Appeals affirmed 141 Tex. 464, 174. S.W.2d 245.

Under the above authorities, appellant’s points of error are overruled and the-judgment of the trial court -is affirmed. ’