American Nat. Ins. Co. v. Crystal

• Decision Date: 22 April 1925
• Docket Number: (No. 1231.)
• Parties: AMERICAN NAT. INS. CO. v. CRYSTAL.
• Court: Texas Court of Appeals

272 S.W. 262

AMERICAN NAT. INS. CO. v. CRYSTAL.

(No. 1231.)

Court of Civil Appeals of Texas. Beaumont.

April 22, 1925.

Appeal from Harris County Court; Murray B. Jones, Judge.

Action by Lottie Crystal against the American National Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Kennerly, Williams, Lee & Hill, of Houston, for appellant.

Byers & Cavanagh, of Houston, for appellee.

HIGHTOWER, C. J.

This suit was filed by the appellee, Lottie Crystal, in one of the justice's courts of Harris county against the appellant, American National Insurance Company, on a policy of life insurance issued by appellant on the life of one Virgil Robinson, who was a brother of appellee, for the principal sum of $112, appellee being named as the beneficiary in the policy. The policy was issued and delivered on February 20, 1922, and Robinson died on October 14, of the same year. Appellant answered by general and special exceptions, general denial, and specially pleaded, among other things, that, at the time of the issuance and delivery of the policy to Robinson, as well as at the time he made his application for such policy, he, Robinson, was not in sound health, as he warranted in his application for the policy, and that according to the terms of the policy and the representations and warranties made in the application therefor, the policy never took effect nor became a binding contract, because of the fact that Robinson was not in sound health when the policy was issued and delivered to him. Appellee, as plaintiff in the justice's court, recovered judgment on the policy for the principal sum of $112, with accrued interest, and also for an attorney's fee of $25, as prayed. The insurance company appealed from that judgment to one of the county courts at law of Harris county, where, upon trial, judgment was rendered for appellee for the same amount she had recovered in the justice's court, and the insurance company, from the latter judgment, has prosecuted this appeal.

In the policy sued upon by appellee, and upon the provisions of which alone she based her case, there is this provision:

"In consideration of the payment in advance of the premium mentioned in the schedule below on or before each Monday during the continuance of this contract doth hereby agree, subject to the agreements and conditions below and on the reverse hereof, each of which is hereby made part of this contract and contracted by the assured to be part hereof as fully as if herein recited, to pay * * * the amount stipulated in said schedule; provided, however, that no obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is alive and in sound health.

"Seventh. This policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreement between the company and the insured and the holder and owner hereof. * * * Its terms cannot be changed or conditions varied, except by a written agreement, signed by the president or secretary. Therefore agents (which term includes superintendents and assistant superintendents) are not authorized and have...