Ætna Life Ins. Co. v. Hanna.

• Decision Date: 23 June 1891
• Citation: 17 S.W. 35
• Parties: &#198;TNA LIFE INS. CO. v. HANNA <I>et al.</I>
• Court: Texas Supreme Court

17 S.W. 35

ÆTNA LIFE INS. CO. v. HANNA et al.

Supreme Court of Texas.

June 23, 1891.

Commissioners' decision. Section A. Appeal from district court, Robertson county; JOHN N. HENDERSON, Judge.

Action by J. K. P. Hanna and others against Ætna Life Insurance Company upon a policy of insurance on the life of J. S. Hanna. Verdict and judgment for plaintiffs, and defendant appeals. Affirmed.

Simmons & Crawford, for appellant. Scott Field and W. O. Campbell, for appellees.

HOBBY, P. J.

This suit was brought by the appellees, J. K. P. Hanna, Mollie Peters, and her husband, E. S. Peters, and the remaining children and heirs of J. S. and Martha Hanna, on the 27th day of December, 1886, against the appellant, the Ætna Life Insurance Company of Hartford, Conn. The object of the suit was to recover $5,000 due on a policy of insurance issued by the company, May 27, 1868, on the life of J. S. Hanna for the benefit of his wife; and, in event of her death before that of assured, the amount was to be paid, on his death, to appellees, their children. All the averments are contained in the petition necessary to authorize a recovery. Service was had on the appellant by serving citation and copy of petition on J. A. Davis, who was alleged to be its agent, and who resided in Parker county, Tex., at the January term, 1887. At the June term, 1887, the company moved to quash the citation, because Davis was not their agent, the company having none in the state. It appears from a preliminary statement of facts, contained in the record, that evidence was heard by the court on this question, and on July 27, 1887, the motion to quash was overruled, and appellant reserved a bill of exceptions in the usual form. At the June term, 1888, the appellant answered, and specially pleaded that the policy had become null and void, because one of the conditions of forfeiture in the policy was that, "if the assured shall become so far intemperate as to seriously and permanently impair his health, or induce delirium tremens," it should become null and void; and that the assured had broken this condition, specifically alleging the details of the breach thereof by him. To this appellees replied that appellant was estopped from setting up said forfeiture, because it had received the premiums paid on said policy, with full knowledge of said intemperate habits, etc., and induced appellees and the assured to believe that it was waived. The trial resulted in a verdict for appellees for $4,090.23, on which judgment was entered, and the company has appealed therefrom.

There are but three questions involved in this case. The first is, did the court err in overruling appellant's motion to quash the citation, on the ground that J. A. Davis was not the agent of appellant in this state as to this policy? It appears from the record in this cause that the motion to quash the service was made at the June term, 1887, and after hearing the evidence on this question it was overruled by the court, and the appellant reserved his bill of exceptions; and no other proceedings appear to have been had with reference to the case until the June term, 1888, when the appellant filed its answer, consisting of a general denial and special pleas. In view of these facts, in the opinion of the writer, it would be a sufficient disposition of the assignment, questioning the correctness of the ruling of the court, to say that, under the authority of York v. State, 73 Tex. 655, 11 S. W. Rep. 869, the appellant, by its answer, submitted itself to the jurisdiction of the court. The object sought to be accomplished by service of a citation is to compel or secure an appearance in court of the defendant. If the defendant answers, this, under the statute, "constitutes an appearance of the defendant, so as to dispense with the necessity for the issuance or service of citation on him." Article 1242, Rev. St. Article 1243 of the Revised Statutes provides, in substance, that if the citation be quashed on defendant's motion, it operates as an appearance at the next succeeding term. An important change was introduced by this statute. It gave to the special appearance of the defendant, made in this motion attacking the service, the same effect that would have followed from a general appearance by the defendant prior to its enactment in 1879. York v. State, supra. The defendant's appearance at the next succeeding term after the motion to quash is made, is not dependent on the fact that the service is quashed. If so, it would result in this: that his appearance to contest that service, which is defective, would operate as an appearance at the next term, but his appearance to contest service, not defective, would not. This was certainly not contemplated by the statute. Hence it is the appearance of the defendant, invoking the court's decision of the question whether it has been properly served, which constitutes the appearance at the next term, under this article, and this is the rule intimated in several cases, but distinctly declared in York v. State, supra. If this is not the proper construction of the statutes referred to, and the statement of facts containing the evidence on the question of Davis' agency, on which the court below held the service to be valid, can be said to properly present the question, in connection with the bill of exceptions, setting forth only the ground of objection to the court's ruling, then we cannot say, from this evidence, that the court was not authorized to hold that J. A. Davis was appellant's agent. It was admitted that the Ætna Life Insurance Company had complied with the laws of this state regulating insurance companies prior to 1878, and had appointed J. A. Davis as its agent, under power of attorney filed in the department of insurance statistics, etc. This power authorized him to accept service in behalf of the company. Davis testified that he had been the agent of the company up to 1878, and general manager for the company in this state. He had no such authority under power of attorney since 1878. The company had discontinued its business here since then. In special cases he is still employed to investigate claims and losses. He collected the premiums on the policy of J. S. Hanna annually since 1878, for the general agent of the company, C. H. Brush, at Philadelphia. The receipts were sent to him by the company on its usual forms for collection. He never heard of any objections made by the company to these collections. He testified that he knew the assured, and collected premiums from him from 1872 to 1878. J. K. P. Hanna testified that he corresponded with Davis and had conversations with him in reference to the policy. He professed to have authority to adjust the loss, and settle the policy, from the company, and exhibited to him a letter to that effect from one of the officers of the company. Davis furnished him with blanks for proof of death. Premiums were paid to him, and the company's receipts returned therefor. Letters were introduced from Davis to the witness dated in November and December, 1886, with...