Pacific Mut. Life Ins. Co. v. Williams

Decision Date20 February 1891
Citation15 S.W. 478
PartiesPACIFIC MUT. LIFE INS. CO. v. WILLIAMS <I>et al.</I>
CourtTexas Supreme Court

Willie, Mott & Ballinger, for appellant. James B. & Charles J. Stubbs, for appellees.

STAYTON, C. J.

This is an action on an accident policy obtained from appellant company by Henry MacDonald, and made payable to Clara Williams. MacDonald was a train porter, and accidentally killed during the term covered by the policy. The petition alleged that the consideration for the policy was "an order given by Henry MacDonald to defendant, and accepted by it, and which was addressed to W. L. Maury, auditor of the I. & G. N. R. R., requesting him to pay to defendant, or its agent, the total sum of $15 in monthly installments of $3.75 each, payable out of moneys due or to become due said MacDonald by the said I. & G. N. R. R. Co." A copy of the policy is annexed to and made a part of the petition, and recites that defendant, "in consideration of the warranties in the application for this insurance, and of the order, payable by installments, on the I. & G. N. R. R. Co., for fifteen dollars, ($15,) does hereby insure Henry MacDonald," etc. Plaintiff further alleged that the "order was partially paid, and that defendant could have collected it in full, but for its own negligent failure so to do." The policy contained the following words, "to be paid to Clara Williams (cousin) if surviving;" and the petition alleged that H. W. Blagge and F. O. Bertrand, composing the firm of Blagge & Bertrand, were the local agents of the company in the county in which action was brought, and that plaintiff was the cousin of MacDonald. The citation issued September 19, 1890, commands the sheriff to summon "the Pacific Mutual Life Insurance Company of California, if to be found in your county, by serving it with a copy of this writ," etc. The return of the sheriff is that he "executed the writ by serving the within named defendant, the Pacific Mutual Life Insurance Company of California, with a true copy of this writ, by delivering a true copy of this writ to H. W. Blagge, agent of said defendant company, in person, in Galveston county." October 15, 1890, judgment was rendered in favor of Clara Williams, for the sum of $1,590, etc., by default; the judgment reciting that defendant was duly served with process. October 30, 1890, the Pacific Mutual Life Insurance Company of California filed its motion to set the default aside, setting up, under oath, that neither Blagge & Bertrand nor H. W. Blagge were or was agent of the said company at the time of the alleged service; that no notice or knowledge of the suit was had by the defendants, its agents or officers, until after default had been taken; that it had valid, meritorious, and legal defenses to the action; but the only defense set up in the motion was "that the policy of insurance upon which this action is brought had, at the time of the death of the insured and long prior thereto, lapsed and become void, by reason of the failure of the insured to pay premiums on said policy as agreed upon, and hence this defendant was relieved of its obligation thereunder." The policy was to run 12 months from noon of March 2, 1887, and the petition alleged that MacDonald was accidentally killed on September 20, 1887. The motion to set aside the judgment was sworn to, and many affidavits were filed by the respective parties, and heard by the court, as to whether Blagge was the local agent of the company at the time citation was served on him, but after hearing these the court overruled the motion. It is urged that the court erred in holding that service on Blagge was sufficient, and erred in not setting aside the judgment by default; appellant having set up a meritorious defense, and given an excuse for failure to answer. The judgment overruling the motion to vacate the judgment does not show on what the court below based its action, but the...

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