234 S.W. 1099 (Tex.Com.App. 1921), 245-3442, Manhattan Life Ins. Co. v. Stubbs

Docket Nº:245-3442
Citation:234 S.W. 1099
Opinion Judge:POWELL, J. CURETON, C.J.
Attorney:Seay, Seay, Malone & Lipscomb, of Dallas, for plaintiff in error. Jas. B. & Chas. J. Stubbs, of Galveston, for defendant in error.
Case Date:December 07, 1921
Court:Court of Commission of Appeals of Texas

Page 1099

234 S.W. 1099 (Tex.Com.App. 1921)




No. 245-3442

Court of Commission of Appeals of Texas, Section B.

December 7, 1921

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by James B. Stubbs against Manhattan Life Insurance Company. A judgment for plaintiff for part only of the amount claimed by him, but allowing him penalty for attorney's fees, was affirmed by the Court of Civil Appeals (216 S.W. 896), and both parties bring error. Judgment reformed so as to permit plaintiff to recover entire amount claimed, with penalty and attorney's fee.

Page 1100

Seay, Seay, Malone & Lipscomb, of Dallas, for plaintiff in error.

Jas. B. & Chas. J. Stubbs, of Galveston, for defendant in error.


This case, and the nature of the issues involved, have been most admirably stated by the Court of Civil Appeals as follows:

"Appellant, Manhattan Life Insurance Company, of New York, on December 26, 1902, issued its life insurance policy No. 131054 for $5,000 to Charles J. Stubbs. The annual premium was $353.40; it was known as an endowment or survivorship policy, entitled to dividends or shares of the surplus at the end of the 15-year period, and matured on December 26, 1917. The policy was, on January 9, 1903, for value, by Charles J. Stubbs assigned to James B. Stubbs, appellee here, after the first premium had been paid by the former. The company was promptly notified of the assignment, and furnished a duplicate.

"Ira F. Collins, the agent who solicited the insurance and delivered the policy, represented to Charles J. Stubbs, the insured, that the dividend at the end of 15 years would amount to $1,215, furnishing his written statement with figures to that effect, and if assured availed of the option which carried with it the dividend, he would receive the sum of $5,000, plus $1,215. The appellee, before paying the second premium (the first having been paid by Charles J. Stubbs), corresponded with A. A. Green, Jr., manager of the southwestern department of the insurance company, at Dallas, Tex., regarding

Page 1101

the dividends and other rights under the policy. He had refused to pay the second premium, and had caused to be returned to Mr. Green the official receipt, which had been sent through a bank. Mr. Green, the company's manager, on December 31, 1903, wrote appellee in response to his letter, and, among other things, stated to him: 'It is true the rates on this policy are high, but you will remember we had some difficulty in getting the company to issue the policy. It is a 15-year endowment policy. If the assured is living at the end of 15 years, the policy is worth its face value in cash, increased by the dividend additions, which will amount to about $1,200 or $1,300.'

"The policy and application, among others not deemed material, contained these provisions:

"'That in the distribution of surplus or apportionment of dividends where the policy calls therefor, the principles and methods then in use by the company in its determination of the amount apportioned to any policy issued upon this application shall be, and are hereby adopted and accepted.

"'That no statements or promises of any agent of the company, unless written upon this application, shall be binding upon the company, nor shall any alteration of, or addition to, the terms and conditions contained in the application or the policy, be binding, unless in writing and signed by the president or secretary.'

"Before the policy matured in December, 1917, the company notified Mr. Stubbs that the dividends thereon upon the date of its maturity amounted to only $90.19, and sent him its draft for $5,090.19, being the face value of the policy with this sum for dividends added. The draft was made payable, however, to both Charles J. and James B. Stubbs, and its payment was further conditioned upon the execution by them both of a full release of any further claims or demands upon the part of either on account of the policy. This tender in like manner was again made on January 22, 1918. On both occasions James B. Stubbs returned the draft to the company, and stated that he would not accept it, because of the unfulfilled promises and statements of its agent, Collins, and southwestern manager, Green; that he would get over $1,200 in dividends, instead of the $90.19 now tendered. In so declining, however, he offered to accept the face value of the policy, $5,000, and then adjust or litigate as to the dividends; but the insurance company declined to do this, and refused to pay the $5,090.19 without the full release above referred to.

"James B. Stubbs then filed this suit upon the policy, praying for the amount due thereunder, which he alleged to be not less than $6,200, for 12 per cent. penalty and reasonable attorney's fees, under Revised Statutes, art. 4746, together with 6 per cent. interest from the date the policy matured. He declared upon the abovementioned representations as to the amount of the dividends made to Charles J. Stubbs by the local agent, Collins, at the time the insurance was taken out, and to himself by the department manager, Green, at the time he paid the second premium thereon, and averred that but for reliance thereon the insurance would never have been contracted for originally nor continued by payment of the second and succeeding premiums. There were also allegations in the alternative which it is not thought necessary to mention.

"In answer, the insurance company denied knowledge of any such representations charged to have been made by its agents, averred that they had no such authority, and also pleaded the above quoted provisions of the application and policy. At the same time, on June 19, 1918, it tendered into court, by turning the money over to the clerk, the sum of $5,090.19, conditioned upon its being in full settlement of the appellee's demands.

"Upon the trial, the court, after overruling exceptions of both parties, rendered this judgment:

"'The court is of the opinion that the evidence fails to show any authority on the part of the soliciting agent, or general agent, of the defendant to bind the company by agreement or promises that the company would pay a certain amount as dividends, and it is adjudged by the court that the plaintiff recover nothing as dividends, except $90.19 hereinafter allowed, and finds that the plaintiff is entitled to recover of the defendant the sum of $5,090.19. The court is of the further opinion that no legal tender was made by the defendant to the plaintiff herein of said $5,090.19 until June, 1918.

"'The court further finds that plaintiff was entitled to 6 per cent. interest on the $5,090.19 from December 27, 1917, until June 19, 1918, which the court finds to be, upon agreed calculations, $150.

"'The court is further of the opinion that plaintiff is entitled to recover penalties of 12 per cent. on said $5,090.19, which totals the sum of $610.82.

"'The court is of the further opinion that the plaintiff is entitled to recover attorney's fees, as provided by said statute, and finds that $1,000, would be reasonable attorney's fees in this case.

"'It is further ordered, adjudged, and decreed by the court that plaintiff may withdraw from the registry of the court the said sum of $5,090.19, and the clerk of this court is hereby ordered to pay said amount to plaintiff, but such payment not to be in full of plaintiff's claim against defendant.

"'It is further ordered that, upon the plaintiff withdrawing said amount of $5,090.19, said judgment shall be credited with such amount, and the remainder thereof shall bear interest at the rate of 6 per cent. per annum until paid.

"'To that part of the foregoing as to dividends in excess of $90.19, plaintiff excepts, and in open court gives notice of appeal.

"'It is therefore ordered, adjudged, and decreed that James B. Stubbs do have and recover of and from the defendant, Manhattan Life Insurance Company of New York, the sum of $6,851.01, together with interest thereon from this date at the rate of 6 per cent. per annum until paid.'

"Both parties complain upon appeal--the insurance company at having to respond for the penalty, attorney's fee, and costs of suit; Mr. Stubbs at being required to accept less in dividends than the agents represented to him would accrue. After giving the helpful briefs and arguments presented most careful consideration, this court is unable to hold that a different

Page 1102

judgment should have been rendered, and directs the affirmance of that entered below."

See (Civ. App.) 216 S.W. 896.

Both parties filed motions for rehearing in the Court of Civil Appeals, which were overruled. In due course, both parties filed applications in the Supreme Court for writ of error and both were granted.

The Court of Civil Appeals announces the following holding:

"The appellee was bound by the express limitations upon the authority of the agents, contained in the policy itself and the application therefor, of all of which he had or was affected with notice, and was therefore in no position to rely upon any apparent or ostensible authority in the agents, Green and Collins, to commit their principal to their individual statements that the insured would at maturity receive a certain amount in dividends; none of the statements appearing either in the application or policy. Delaware Insurance Co. v. Harris, 26 Tex.Civ.App. 537, 64 S.W. 867; Sovereign Woodmen of the World v. Lillard, 174 S.W. 619; Equitable Society v. Carpenter, 184 S.W. 585."

We cannot concur in the holding just quoted. The authorities cited by the Court of...

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