FIRST BANKERS INSURANCE COMPANY, Petitioner, v. G. H. NEWELL et ux., Respondents, 471 S.W.2d 795

POPE, Justice. G. H. Newell and his wife sued First Bankers Insurance Company on a hospitalization policy issued by that company. The Newells sought indemnity for losses resulting from an illness contracted by Mrs. Newell during the alleged period in which the policy was in force. The trial court awarded judgment for the Newells for their medical expenses, hospitalization expenses, penalty and reasonable attorney’s fees. The court of civil appeals affirmed this judgment. 463 S.W.2d 745. The Newells’ original policy of insurance was issued in 1964.

A premium on the policy became due on August 20, 1967, but was not paid. The policy provided for a 31-day grace period which expired September 20, 1967. On October 5, the Newells mailed a quarterly premium of $64.40 to the company. The company then sent a reinstatement application to the Newells, which the Newells completed and returned to the company. Reinstatement of the policy was approved on October 18. On October 16, 1967, Mrs. Newell was examined by her physician, and a breast cancer was discovered.

The jury found that this malady originated prior to September 20, 1967, which was during the grace period under the original policy. On October 19, Mrs. Newell was hospitalized for surgery, and expenses of this treatment precipitated the claim against the company. The Newells asserted their right of recovery and obtained their judgment under the provisions of the original policy. They did not rely upon the terms of the reinstatement agreement. The petitioner has no point and makes no contention that the Newells failed to prove their right of recovery under the policy.

Petitioner’s only attack upon the judgment is that the Newells can not recover under the terms of the reinstatement agreement. The judgments of the courts below are affirmed.