On Motion for Rehearing.
Apipellee has filed a motion for a rehearing, and also a motion that this case be certified to the Supreme Oourt. The ground for the latter motion is that our opinion herein is in conflict with the opinion of this court in A. L. of H. v. Batte, 34 Tex. Civ. App. 456, 79 S. W. 629; Same Appellant v. Hefley, 79 S. W. 1199; Same v. Oxenford, 79 S. W. 1199; Same v. Cochran, 81 S. W. 1276; Same v. Repsdorph, 81 S. W. 1277; Same v. Sweiss, 81 S. W. 1277; and Same v. Williford, 81 S. W. 1278. These were companion cases from the same court, in which the parties were represented by the same attorneys. In all of these cases, except the Batte •Case, memorandum opinions were rendered; the court saying that they involved the same •questions of law.
In our opinion herein we said: “In the Batte Case the amount of the recovery does not appear to have been made an issue.” ■Since appellee’s motion for a rehearing has been filed herein, we have examined the rec•ord in the Batte Case and find that we were ■correct in the above statement. The judgment in that case was for a certain sum, without mention as to how the same was arrived at. Appellant made no motion for a new trial; the case having been tried before the court. Its assignments of error xaises only the issues as to appellant’s right to reduce the policy from $5,000 to $2,000, the acquiescence of appellee in such change in its by-laws, forfeiture of the policy by ap-pellee’s failure to pay premiums, and the ■statute of limitation. ' No error is assigned as to the amount of the judgment, nor as to the measure of damages, and no reference is made in appellant’s brief to these matters. This court having found, as we think rightfully, against appellant on the errors assigned, could not do otherwise than affirm the judgment, however erroneous the measure of damages adopted by the trial court may have been, and however excessive the judgment may have been by reason of such erroneous measure of damages. For the reason that there is no conflict between the opinion in this case and in the Batte Case, we decline to certify this case to the Supreme Court.
Appellee insists, and perhaps not without reason, that in quoting with approval the language of a number of courts with reference to the proper measure of damages, we have not made it clear as to just what is the proper method of arriving at the damages recoverable in this case. For instance, the statement in the Alabama case that “the legal measure of damages is the surrender or equitable value of the policy” means the present value of such policy to the insured under his contract; in other words, the present value of his insurance contract. We attempted to illustrate this in the supposed contract with the carpenter, from which we deduced the conclusion that upon breach of contract one is “entitled to the value of the thing contracted for, less what it would have cost him, had the contract been carried out.”' Applying this to a life insurance policy which has been wrongfully canceled, the insured is entitled to present value of the policy, to be ascertained as indicated in the eleventh paragraph of our opinion herein as to a paid-up policy, less the present value of the premiums which would have been paid under the contract, had the same been carried out.
We will give an illustration, applicable to the very facts of this case which will determine the amount that appellee is entitled to recover, and which will meet the demands of the standard herein laid down, without the necessity of figuring interest or discount. Assuming, as appellee states in his motion, that he was 42 years old and had an expectancy of 26 years at the time his policy was canceled, any actuary, or perhaps any competent insurance agent, with the aid of the tables furnished him, can tell for what amount in cash.a reliable insurance company would have issued a paid-up policy for $3,000, the amount of the policy herein on which the insured was paying an annual premium of $45, as was the case as to the policy canceled, and for what amount in cash such company would issue a policy' for the same amount as the canceled policy, on an insurable risk, aged 42. The difference between these sums, with interest from the date of the wrongful cancellation, is the appellee’s measure of damages, for with this difference,, plus what it would' have cost him to have *1052had the contract carried out, had the policy not been canceled, he could have obtained as equally advantageous a contract or policy.
This being a case of first impressions and there being irreconcilable conflicts in the decisions on this subject in other jurisdictions, we have deemed it proper to comply with appellee’s request to make this further explanation and illustration of our holding in this case. '
The motions for rehearing and to certify are overruled.