American Nat. Ins. Co. v. Burnside
| Decision Date | 27 March 1915 |
| Docket Number | (No. 7326.) |
| Citation | 175 S.W. 169 |
| Parties | AMERICAN NAT. INS. CO. v. BURNSIDE. |
| Court | Texas Court of Appeals |
Action by J. C. Burnside against the American National Insurance Company. Judgment of justice court for plaintiff was affirmed on appeal to the county court, and defendant brings error. Affirmed.
M. L. Robertson, of Dallas, for plaintiff in error. Joe Utay and C. T. Williamson, both of Dallas, for defendant in error.
The evidence adduced at trial in this case establishes, without dispute, that on July 22, 1912, plaintiff in error insured the life of Pearl McMinn for the benefit of her husband, Forrest McMinn, in the sum of $192, one-half thereof to be paid if the insured died within six months after the issuance of the policy. Forrest McMinn, the beneficiary, died September 29, 1912. After his death, and about November 15, 1912, Pearl McMinn requested the agent of the plaintiff in error to indorse the policy so that her sister, Mrs. J. C. Burnside, the defendant in error, would be the beneficiary thereunder. Plaintiff in error's agent declined to do so until all premiums were paid to January 6, 1910. The premiums were paid at once, whereupon the agent retained the policy, promising to make the change in the beneficiary and return same within two weeks. Thereafter, and on November 25, 1912, Pearl McMinn died. The policy was not returned by plaintiff in error, but retained until trial, when it was offered in testimony, and is a part of the statement of facts. There is an indorsement on the policy making the defendant in error the beneficiary. The indorsement, however, is dated November 25 1912, the day Pearl McMinn died, and is signed by the secretary of the plaintiff in error. Suit on the policy was commenced March 7, 1913, in justice court, Dallas county, where judgment was for defendant in error. There was an appeal to the county court of Dallas county at law and jury trial, resulting in verdict and judgment for defendant in error, from which this appeal is prosecuted.
We affirm the case upon the errors assigned for the following reasons:
1. Because there was no error in overruling plaintiff in error's general demurrer and special exception to defendant in error's petition on the ground that the petition showed no cause of action because it failed to allege "that the insured was in sound health at the time the policy was issued as required by the conditions" of the policy. If the insured was not in sound health when the policy was issued, such fact, at most, constituted a valid defense, and not an affirmative matter necessary to be alleged by defendant in error in order to disclose a cause of action.
Further, it does not appear that plaintiff in error, within the 90 days required by law in such cases, gave notice that it would not be bound by the contract. Hence that defense, if it existed, was lost. Article 4948, Vernon's Sayles' Stats. 1914; National Life Ass'n v. Hagelstein, 156 S. W. 353.
2. Because there was no error on the part of the trial court in...
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