Centennial Mut. Life Ass'n v. Parham

• Decision Date: 17 April 1891
• Citation: 16 S.W. 316
• Parties: CENTENNIAL MUT. LIFE ASS'N v. PARHAM.
• Court: Texas Supreme Court

16 S.W. 316

CENTENNIAL MUT. LIFE ASS'N v. PARHAM.

Supreme Court of Texas.

April 17, 1891.

Appeal from district court, Taylor county.

Cockrell & Cockrell, for appellant. G. A. Kirkland, for appellee.

STAYTON, C. J.

In 1881 the wife of C. W. Parham applied for and obtained from the appellant corporation a policy of insurance on her own life for the benefit of her husband, and, subsequently dying, the sum called for by the policy was paid to the husband. This action was brought by the appellant to recover the sum so paid, on the ground that the policy was obtained through false representations made by the insured in her application, breach of warranties contained in the policy, and fraudulent combination between the wife and husband to thus obtain the policy, as well as false statements made by him after her death for the purpose of securing payment. It was alleged that these matters were unknown to the insurer until after the policy was paid. Defendant answered by a general denial, and pleaded, by way of estoppel, that the falsity of the representations made was known to the agent of the company at the time they were made; and to this plaintiff replied collusion between defendant and his wife and its agent, for the fraudulent purpose of procuring the policy and its payment. It was admitted on the trial that, by the terms of the application and policy, "all of the questions propounded therein were made material, and all answers were warranted by the assured to be true, full, and complete; and it is further agreed by counsel for plaintiff and defendant that the application and policy provided expressly that the policy should be null and void if the assured made any false or fraudulent or untrue answer to any question propounded to her, or if she concealed any fact which should have been stated, or if she should subsequently to issuance of said policy become so far intemperate as to permanently impair her health, or if she made any misrepresentation to secure said policy. It is further agreed that said Charles W. Parham warranted that her answers were full, complete, and true, and were, as written, the only statements given to the association in reply to its inquiries, and that her answers so given should be the basis of the contract with plaintiff company." Neither the policy nor application are found in the transcript, but it was agreed that the following questions and answers were contained in the application: "(1) How long since you professionally consulted a physician? Answer. Not for years. (2) Do you use alcoholic stimulants or malt beverages? A. No. (3) How long have you used them, and to what extent? No answer. (4) Do you now or have you ever been in the habit of using opium, chloral, chloroform, ether? A. She answers `No' to all of said questions. (5) Are your menses regular? A. Yes. (6) Have they always been so? A. Yes. (7) Have you ever had any local disease or serious illness? If so, state date, nature, and duration. A. No." "(9) Are you now in good health? A. Yes. (10) Do you know of anything in your personal habits, manner of life, or from any inherited tendency to disease that will shorten life or vitiate a policy, if issued? A. I do not."

Application for the policy was received July 18, 1881, and Mrs. Parham died on July 23, 1882. It appeared from the certificate of the physician who attended her in her last illness that he had known her about four years, and that he had been her medical adviser for about two years. He stated that the cause of her death was fatty degeneration of the heart; that she always complained at her menstrual periods, and "suffered with dysmenorrhea, and suffered intensely at times." Appellee, in his application for payment of the policy, stated that he had known the insured for 25 years; that he was her husband; and that her occupation was that of housekeeper for the family composed of themselves. He was asked the following question: "Did the deceased violate any condition of the above-mentioned policy in respect to the use of spirituous liquors, dueling, or suicide?" and in answer replied that she did not. Parham and wife resided in Hot Springs, Ark., and a druggist who knew her from 1879 until her death testified to having for months sold her morphine by the bottle, and that this frequently occurred during the year 1880. A female attendant at the Springs during the years 1881 and 1882 testified that during these years she waited on Mrs. Parham, and that "she was in the habit of sending me for whisky, which she drank at bath-hosue. * * * She also sent me for morphine, which she would pour out, and take from her open hand, and eat it. Once she became so intoxicated that I laid her on the sofa at bath-house, and bathed her head with cold water until she got sober enough to go home. I have bought a small bottle of morphine for her in the morning, and she would send me for more in a paper in the evening. This course continued while she bathed at bath-house, a good many months. I waited on her during a portion of the years 1881 and 1882. She drank large quantities of whisky; so much at times as to alarm me. She would take more at one time than any lady I ever saw, unless it was a drunkard." Two other female witnesses testified that in 1882 the assured was in the habit of taking morphine in large quantities frequently. A physician was called to see her twice in one night, and found her under the influence of an opiate; and another who knew her from 1878, and frequently visited her professionally, stated that prior to 1881 on one occasion he found her dangerously narcotized from the use of morphine; that "she was habituated to the use of morphine prior to 1881. She used morphine all during my acquaintance, except when I practiced the deception of substituting quinine for morphine. The morphine was taken in rather large doses. The effect of its continued use is to create what is known as the `opium habit' or `morphine habit,' which, when once contracted, perverts all the natural sensitives and functions of the human body." Mrs. Cline, who seems to have been on most intimate terms with the assured, "who boarded in the same house with her, sat with her, talked with her," and sometimes slept with her, and who had known her for five years before her death, and testified to being fully informed as to her habits, testified to her continuous use of morphine, and that she also took whisky, and that this course of life continued until a short time before her death. She testified as to the quantity of morphine assured would take at one time, and a physician stated that one who had not acquired the morphine habit could not take such doses. Appellee testified to the fact of his own knowledge that his wife had been accustomed to use morphine before the policy was applied for, and that he gave this as a reason to the agent of the company for not desiring to apply for a policy on the life of his wife when the agent solicited him to do so. The agent of the company who solicited the insurance was a physician, and treated the assured for the opium habit before he took her application. He stated that he "was fully posted in regard to her health, habits, and the history connected with her habit. * * * The answers were given by Mrs. Parham, and filled in by myself. I believe the answers given by Mrs. Parham were in good faith and truthful in every respect. I only knew that Mrs. P. used opium and other drugs from her own statements and those of her husband." Appellee's statement, in regard to the facts preceding the issuance of the policy, that transpired between him and the agent, is: "Dr. C. J. Weatherby had been my family physician, and a few days before the issuance of the policy he came to my livery stable, in Hot Springs, and said to me that he was now a life insurance agent, and would need a good many horses in his business. He had already sent around and gotten horses from our stable a number of times just prior to this conversation. He further said at said time, or in same conversation above referred to, that I ought to help him out by taking out a policy on my life. I told him in reply that I already had a policy on my life. * * * Weatherby then asked me to take out a policy on my wife's life. I replied that she was opposed to insurance, and, besides, that she had been addicted to the use of morphine. I believed that the use of opium was objectionable to insurance companies. Weatherby replied: `I know all about that; I have cured her of the habit. I know more about her condition than you do. She is as good a risk as our company wants, and is a better risk than several others [naming them] to whom we have issued policies.' He furthermore said that if I would give him...