American Nat. Ins. Co. v. Gallimore

• Decision Date: 09 April 1914
• Docket Number: (No. 1300.)
• Citation: 166 S.W. 17
• Parties: AMERICAN NAT. INS. CO. v. GALLIMORE.
• Court: Texas Court of Appeals

166 S.W. 17

AMERICAN NAT. INS. CO. v. GALLIMORE.

(No. 1300.)

Court of Civil Appeals of Texas. Texarkana.

April 9, 1914.

Appeal from Dallas County Court; W. F. Whitehurst, Judge.

Action by William H. Gallimore against the American National Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. H. Clark and M. L. Robertson, both of Dallas, for appellant. Joseph Utay, of Dallas, for appellee.

HODGES, J.

In this suit the appellee seeks to recover of the appellant the sum of $213.60, claimed as the amount due on a policy of insurance. He also asks for 12 per cent. of the above amount as damages, and $50 as attorney's fees. On June 13, 1913, the appellee filed what he terms his "first supplemental petition," but which is in reality an amended original petition. In this pleading he alleges, among other things, as follows: "That on the 6th day of July, 1908, plaintiff was the husband of one Mary Gallimore; that on the same day defendant, in consideration of the payment by said Mary Gallimore to the defendant of the sum of 15 cents, and the further sum of 15 cents to be paid weekly through her natural life, executed and delivered to said Mary Gallimore its policy of insurance in writing, whereby it insured the life of the said Mary Gallimore in the sum of $216 for the benefit of plaintiff, and thereby promised to pay and became liable to pay the said sum upon the death of Mary Gallimore. Plaintiff further represents that said Mary Gallimore died on or about the 12th day of May, 1912, and that up to the time of her death all premiums accrued and due upon said policy were paid, save and except the sum of 90 cents, which premiums had been tendered to the defendant on or about the 10th day of May, 1912, and refused by said defendant; that all conditions and provisions of said policy were complied with; that within a reasonable time after the death of the insured, the defendant was given notice of the death of insured, and plaintiff duly demanded from the defendant the amount as contracted for in said policy of insurance, less 90 cents, the amount of premiums then due." Then follow other allegations, not necessary to be considered in disposing of the questions presented in this appeal.

The answer of the appellant consisted of a general demurrer, what are termed "special exceptions," and general and special denials. In substance, the defense was the failure to pay the stipulated premiums according to the terms of the policy and to present proofs of death before suit was instituted. It is further alleged that, by reason of the failure to pay the premiums according to its terms, the policy had lapsed, and was not in force at the time of the death of the insured. The paragraphs of the answer referred to as "special exceptions" have none of the essentials necessary to constitute that character of pleading. They point out no part of the contents of the petition as objectionable, but, on the contrary, refer to issues of fact, and therefore cannot be treated as exceptions.

A verdict and judgment were rendered in favor of the plaintiff for the amount of the policy, damages, and attorney's fees.

Complaint is made of the following charge of the court: "You are further instructed that, if you find and believe from the evidence that plaintiff paid to the defendant or its agent or employé the sum of $2 on April 15, 1912, and that said agent accepted said money, and that, as such agent, he was authorized to receive money and that he did, in fact, receive such money, then such act was the act of the defendant, and you will find for the plaintiff." At the time the policy of insurance was issued, the insured was furnished with a book called a "premium receipt book," in which the premiums made at various times were entered. This book was offered in evidence by the appellee, and showed that premiums had been paid and entered up to and including January 22, 1912. Appellee also offered in evidence two receipts; one dated March 18, 1912, and the other April 15, 1912. Each of those receipts was as follows: "Received from Wm. Gallimore $2.00, being the arrears on Policy No. ____ which the applicant desires the company to revive. Under no circumstances will the company be liable under...