American Central Life Ins. Co. v. Alexander, 1618-6035.

• Decision Date: 15 February 1933
• Docket Number: No. 1618-6035.,1618-6035.
• Citation: American Central Life Ins. Co. v. Alexander, 56 S.W.2d 864 (Tex. 1933)
• Parties: AMERICAN CENTRAL LIFE INS. CO. v. ALEXANDER.
• Court: Texas Supreme Court

56 S.W.2d 864

AMERICAN CENTRAL LIFE INS. CO. v.ALEXANDER.

No. 1618-6035.

Commission of Appeals of Texas, Section A.

February 15, 1933.

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

Action by Mrs. Lorine M. Alexander against the American Central Life Insurance Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals [39 S.W.(2d) 86], and defendant brings error.

Affirmed.

Douglas & Spiller, of Lubbock, and Hampden Spiller, of Fort Worth, for plaintiff in error.

R. A. Baldwin, of Slaton, for defendant in error.

SHARP, Judge.

Mrs. Lorine M. Alexander sued the American Central Life Insurance Company on a life insurance policy issued by that company upon the life of her husband, Chester Lloyd Alexander, for $1,000 face of the policy, $1,000 under the double indemnity clause contained therein, interest, 12 per cent. penalty, and reasonable attorney's fees.

The defendant denied its liability on the following grounds: (1) That the insured committed suicide; and (2) that the insured in his signed application made misrepresentations in answer to certain questions asked.The trial court sustained special exceptions to the second ground, and defendant having declined to amend its pleadings, the court proceeded to trial upon the issues raised by the pleadings.The case was submitted to the jury upon special issues, and the jury found that the insured did not intentionally kill himself and that $750 was a reasonable attorney's fee.Judgment was entered in favor of the plaintiff for $3,067.From this judgment an appeal was made to the Court of Civil Appeals and the judgment of the trial court was affirmed.39 S.W.(2d) 86.

It is contended that the Court of Civil Appeals erred in holding that defendant's answer was insufficient to present a defense of misrepresentations in the application for the policy of insurance signed by the insured, in that the answer did not allege that the misrepresentations were intentionally made by the insured for the purpose of misleading the insurance company and inducing it to issue the policy sued on.

The parts of the answer pertinent to the issues presented read as follows:

"5.The defendant would show that it is not liable on said policy because of the following facts: Prior to the issuance of the same the said Chester Lloyd Alexander submitted to the plaintiff, through its duly authorized agent, G. W. Bounds, an application for the issuance of the policy sued upon, which application was duly signed by the said Alexander, and among other things contained the following:

"`Declarations of Applicant in Lieu of Medical Examination:

"`In continuation of and forming a part of my application to the American Central Life Insurance Company, I declare that the statements and answers herein are complete and true without exception.* * *

"`19.(a) To what extent do you use alcoholic beverages?

"`None.

"`Have you ever used them to intoxication?No.'

"6.That the said application containing the above language and representations by the said Alexander was presented to the defendant herein and was the basis of the issuance of the policy to the said Alexander, and that the declarations hereinabove quoted and alleged were believed by the defendant herein and relied upon by it in the issuance of said policy; the defendant would show that said answers are false, and especially the answer to the question `To what extent do you use alcoholic beverages?'; for the reason that the said Alexander for a long time prior to and after the making of said representations did use alcoholic beverages, and the answer to said question `none' was false; and the defendant further says that the said Alexander for a long time prior to and after the making of said representations habitually used alcoholic beverages and that he was often under the influence of alcoholic beverages and drinks and was often intoxicated before and after the making of said representations, and that his answer to the question, `Have you ever used them to intoxication?' was false and untrue.

"7.The defendant would show that had the said Alexander not answered said questions falsely, but had truly stated the facts in answer thereto, the defendant would not have issued the said policy to him, and the defendant says that the aforesaid misrepresentations in the said application were of a material fact which affected the risk assumed by the defendant herein.In this connection the defendant would show that the said policy was a policy of life insurance and it contained a provision which was as follows: `Incontestability.After this policy shall have been in force during the lifetime of the insured for two years from its date, it shall be incontestable except for non-payment of premium,'and that the said Chester Lloyd Alexander killed himself within the first year after said policy was issued and within the contestable period under the terms of the same, and that the defendant is not liable for any...