American Nat. Life Ins. Co. v. Rowell

• Decision Date: 27 March 1915
• Docket Number: (No. 7334.)
• Citation: 175 S.W. 170
• Parties: AMERICAN NAT. LIFE INS. CO. v. ROWELL.
• Court: Texas Court of Appeals

175 S.W. 170

AMERICAN NAT. LIFE INS. CO. v. ROWELL.

(No. 7334.)

Court of Civil Appeals of Texas. Dallas.

March 27, 1915.

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

Action by John F. Rowell against the American National Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. L. Robertson, of Dallas, for appellant. Joe Utay and C. T. Williamson, both of Dallas, for appellee.

TALBOT, J.

Appellee, John F. Rowell, as plaintiff below, instituted this suit on the 3d day of March, 1913, in the justice court, precinct No. 1, Dallas county, Tex., against the appellant, American National Insurance Company, to recover upon a policy of insurance issued by appellant on the 22d day of July, 1912, for and in consideration of the payment of the premium of 10 cents, and the further sum of 10 cents to be paid weekly through her natural life, the said policy insuring the life of Gertrude Rowell, the wife of appellee, for the sum of $192, payable to appellee upon the death of his wife, with the provision in said policy that in case insured died within six months from the date thereof that in that event one-half of the aforesaid amount should be paid. Appellee alleged that his wife died on or about the 20th day of November, 1912, and that up to the time of her death all premiums accrued and due upon said policy were paid, and all conditions and provisions thereof were complied with; that a reasonable time after the death of the insured the defendant was given notice of the death of the insured, and plaintiff duly demanded from the defendant the amount contracted for in said policy of insurance, which defendant refused to pay. Plaintiff prayed judgment for the sum of $96 (one-half the face of said policy), interest, 12 per cent. damages on the amount of the loss, attorney's fees in the sum of $25, and for costs of suit. The defendant answered by general and special demurrers to plaintiff's petition, a general denial, and specially that, as a condition precedent to a recovery thereon, the policy provided that no obligation is assumed by the insurance company prior to the date thereof, nor unless on said date the insured is alive and in sound health; that the insured was not in sound health at said date, and died within four months thereafter of consumption. Defendant further alleged that the premiums due on the policy were not paid according to the terms of the policy, and that it had lapsed before the death of the insured. From a judgment in favor of the plaintiff in the justice court for $132.52, the amount sued for, defendant appealed to the county court at law of Dallas county, where judgment was again rendered in favor of the plaintiff for said amount, and the defendant perfected an appeal to this court.

There was no error in the court's action in overruling defendant's general and special demurrers to plaintiff's petition upon the ground that said petition showed no cause of action because it was not alleged that the insured was in sound health at the time the policy of insurance sued on was issued, or in refusing to permit the introduction of testimony to the effect that the insured at that time was not in sound health, or in refusing to give the special charge requested by defendant, to the effect that if the jury believed from the evidence that the insured was not in sound health at the time the policy was issued to find for the defendant. The plaintiff's petition was not obnoxious to either a general or special demurrer because it did not allege that the insured was in sound health at the date of the issuance of the policy. If she was not in sound health at that time, such fact was a matter of defense to be pleaded by the defendant.

The answer of the defendant averred that the insured was not in sound health when the policy was issued, but the defense was not sufficiently pleaded to justify the admission of testimony to establish it. Without directly alleging that the insured falsely represented that she was in sound health at the time the policy was issued, it is alleged "that insured was not in sound health at said date and known by plaintiff and insured not to be so, which representations were untrue, and insured died within four months after said date of consumption, which disease she had at said date, and the defendant is ready to verify, but it was not alleged that the defendant had given notice to either the insured or the beneficiary that it refused to be further bound by the contract.

Article 4948 of Vernon's Civil Statutes provides that in all suits brought upon insurance contracts no defense based upon misrepresentations made in application for, or in obtaining or securing, the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the misrepresentations so made, it gave notice to the assured, if living, or, if dead, to the owners or beneficiaries of said contract, that it refused to be bound by the contract or policy; it being further provided that 90 days shall be a reasonable time. The failure to give the notice here prescribed absolutely bars the insurance company from defending an action on the policy because of alleged misrepresentations. National Life Ass'n v. Hagelstein, 156 S. W. 353. The statute referred to applies to covenants of warranty as well as to statements in the application not made warranties by the contract. Mecca Fire Ins. Co. v. Stricker, 136 S. W. 599. The provision in the policy was not a condition precedent to a recovery thereon, but, as said, was a defensive matter to be pleaded by the defendant, and that the purpose of its pleading on the subject was to charge that the insured was falsely represented to be in...