Ætna Life Ins. Co. v. Hocker

• Decision Date: 03 May 1905
• Parties: &#198;TNA LIFE INS. CO. v. HOCKER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

89 S.W. 26

ÆTNA LIFE INS. CO. v. HOCKER.^*

Court of Civil Appeals of Texas.

May 3, 1905.

On Rehearing, June 21, 1905.

Appeal from District Court, Ward County; Jas. L. Shepherd, Judge.

Action by Mrs. Maud E. Hocker against the Ætna Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed on rehearing, and judgment rendered for defendant.

Further rehearing denied October 11, 1905.

Action upon a life policy. On August 11, 1903, A. S. Hocker made a written application for a $10,000 policy on his life, in favor of appellee, his wife. In the application is the following: "And I further agree that the insurance hereby applied for shall not be binding upon the company until a policy has been issued, nor until the amount of premium as stated herein has been received by said company, or its authorized agent, during my lifetime and good health, and a receipt given therefor signed by an executive officer of the company; * * * and I understand that all polices and agreements made by said Ætna Life Insurance Company are signed by one or more of its executive officers, and that no other person can grant insurance or make any agreement binding upon said company." The application called for term insurance to June 10, 1904, at 89 cents a thousand, and a 20-payment nonparticipating policy for $10,000, at an annual premium of $288 from June 10th. At the same time Hocker executed a note for $377, payable June 10, 1904, to the order of J. W. Johnson, a local agent of appellant at Barstow, Tex. This note was placed in the Ward County Bank, at Barstow, with agreement, signed by J. W. Johnson and A. S. Hocker, as follows: "This note is hereby placed in the Ward County Bank in escrow, and is to be delivered to J. W. Johnson when a satisfactory policy for $10,000.00 is turned over to A. S. Hocker by said bank." We may appropriately state in this connection that the amount of this note accurately embraced the premium for the term insurance, $89, and the first annual premium for the year beginning June 10, 1904, which was $288, as determined by Hocker's age at the date of the application; but the latter premium would have been fixed by his age on June 10, 1904, when the regular insurance was to begin, which would have made it $294.40, instead of $288. A slip appears to have been pasted to the application, which provided that the policy should not take effect until the premium for the temporary or term insurance shall have been actually paid during the lifetime and good health of the insured, and within 60 days from August 18, 1903, a receipt for which payment shall be a delivery of the policy, and, further: "If any subsequent premium be not paid when due, this policy shall cease and determine subject to the nonforfeiting features hereinafter described, except that a grace of 30 days, during which time the policy remains in full force, will be allowed for the payment of any premium after the first, provided that with the payment of such premium interest is also paid thereon for the days of grace taken; but for any reckoning hereinafter named the time when a premium becomes due shall be the day stipulated therefor on the first page hereof. No premium shall be considered paid unless a receipt shall be given therefor signed by an executive officer of the said company, and if any obligation given in payment or part payment of any premium is not paid when due this policy shall then cease and be treated as if no such obligation had been given." The provisions of the slip were embodied in section 1 of the policy.

The testimony is that in the application the premium appears to have been originally written $288, the rate applicable to the age of 33 years, and marked out, over which was written the figures $294.40, that were applicable to the age of 34 years, and the same also appears there in pencil. On the back of the application the premium is expressed as $294.40. The testimony is such as would support a conclusion that the change from $288 to $294.40 was not made in the office of the company's general agent for Texas at Dallas, to whom it was forwarded from Barstow, nor in the company's office in Hartford, but was made at Barstow, before forwarded to Dallas. Mr. English, the company's secretary, testified that the application of Hocker was not approved, because it appeared that the kind of insurance applied for was not specifically described; that the application did not state whether the policy was to be a 20-payment life or a 20-year endowment; that it was also not approved because the premium to be paid was not clearly stated; that for these reasons the application was not approved, but the medical examiner for the company at Hartford did write thereon the word "Approved," and signed his initials thereto, indicating that the risk was satisfactory from a medical standpoint; that the policy was prepared and forwarded to the company's agents at Dallas, Messrs. Farrell & Harris, with instructions to deliver it upon proper correction of the application, on a form which was sent with the policy, was signed by Hocker, and forwarded to the company; that the date of this policy was June 10, 1904, the date the regular insurance was to begin; but a rider was attached thereto providing that term insurance should begin when the policy was delivered and the term premium paid; that this policy was drawn on the 20-payment life plan, and called for a regular annual premium of $294.40, instead of $288, and that this policy the agents were authorized to deliver, when Hocker should sign a request or authority to the company for certain changes in the application which would make the same conform to the policy as actually written; that the following is the letter to said agents: "Inclosed find policy No. 59,612, Hocker. Those against which we have marked `X' are accompanied with a form for correction of the application. This must be signed by the applicant and forwarded to the company before the policy is delivered. Please give this your personal attention. Yours truly, J. L. English, Sec." The receipt of the policy and correction slip with the above letter by the company's agents at Dallas appears to be a fact clearly established. But there was testimony by circumstances which would carry to the jury the question of fact whether or not these agents sent the policy to Mr. Weaver, of the Ward County Bank, as Hocker's agent, for delivery to him, without reference to any corrections. A few days after Weaver received the policy, and before Hocker called for it, the latter was killed.

J. E. Starley, W. J. Maroney, and T. B. Love, for appellant. T. J. Hefner, P. B. Ward, and A. J. Wilson, for appellee.

JAMES, C. J. (after stating the facts).

The court charged the jury, first, to find for plaintiff, if, among other things, defendant, after issuing the policy, forwarded it to the Ward County Bank for and in behalf of Hocker. In other words, the theory upon which this instruction proceeded was that, notwithstanding the private instructions of defendant to its agents, Farrell & Harris, not...