Equitable Life Assur. Society v. Ellis

• Decision Date: 29 June 1910
• Citation: 137 S.W. 184
• Parties: EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES v. ELLIS.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

137 S.W. 184

EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES v. ELLIS.^†

Court of Civil Appeals of Texas.

June 29, 1910.

Rehearing Denied November 3, 1910.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by Amanda M. Ellis against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff, defendant appeals. Affirmed.

Ogden, Brooks & Napier, for appellant. James H. Robertson, Alexander Graves, and John C. Sullivan, for appellee.

BARBER, Special Chief Justice.

This is an appeal from a judgment rendered in the district court of Travis county October 1, 1908, in favor of Mrs. Amanda M. Ellis, the mother of Caswell G. Ellis, on a policy of insurance in the sum of $25,000 upon the life of the latter, issued by appellant and payable to Mrs. Ellis. The trial was before a jury, who found for appellee, and the substantial question in the case is whether there was sufficient evidence to carry the case to the jury for determination.

The inception of the transactions giving rise to the controversy is an application made by Caswell G. Ellis to appellant on March 24, 1904, through its general agents Marx & Plummer, of San Antonio, for two policies of insurance upon his life, in the sum of $25,000 each, one to be payable to his wife and the other to his mother. The company issued the policy sued upon in favor of the mother on April 16, 1904, but making the premium fall due each year on March 24th. Ellis died on May 12, 1906, as result of gun shot wound received the day before. The premium which became due March 24, 1906, according to the reading of the policy, had not been paid, and such failure was properly pleaded by appellant, the company, and constitutes its only defense. The specific provision of the policy on the point, as correctly pleaded, was: "This policy shall lapse, and together with all premiums paid thereon shall forfeit to the society on the nonpayment of any premium when due." To avoid the effect of this, appellee pleaded, among other things, with minuteness, facts relied upon by her as estopping appellant to rely upon such failure, and as showing that it had waived any forfeiture of the policy. It developed in the testimony, as indicated by the pleading, that these matters of avoidance urged by appellee rested largely upon or were evidenced by correspondence had by Ellis with Bourke, the cashier of appellant at San Antonio in 1905, and with Wyman, its cashier, at Austin in 1906. Their authority in the premises was denied by appellant, and it invoked another clause of the policy which read that the "policy and the application therefor, taken together, constitute the entire contract, which cannot be varied except by one of the following executive officers of the society at its home office in New York, viz.: The president," etc., naming several officers, but not including the superintendent of the loan and extension department, hereinafter referred to. Under the charge of the court, the jury must have found for appellee more facts than we think necessary for her recovery. Their verdict involves a finding that any forfeiture or right to forfeit was waived, and that the acts of Wyman and others relied upon were within the scope of their employment and therefore the acts of appellant. As we have reached the conclusion that there is sufficient evidence to support these findings, there is no occasion to consider any other.

The sufficiency of the evidence to authorize these two findings is presented under the first assignment of error, which complains of the refusal of the trial court to charge the jury to find for appellant. To have been justified in so doing, "the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it." Lee v. Railway, 89 Tex. 588, 36 S. W. 63.

It matters not what we might think as an original proposition. Twelve men have exercised the functions accorded them and their conclusion had the sanction of the trial judge. That there was permissible grounds for the deductions they drew we think the record here affirms. The question as to whether the acts and letters of Wyman, Bourke, and Brophy could be considered against appellant upon the issue of waiver, and then whether there was enough to show a waiver, are so intimately connected under the peculiar facts of this case that we will not attempt to separate our discussion thereof.

It is admitted that during all the time under consideration R. H. Baker was appellant's general manager for the larger part of Texas, with his office at Austin; that Marx & Plummer were its general agents at San Antonio, their territory embracing some 40 counties; that during 1905 W. H. Bourke was its cashier at San Antonio, officing with Marx & Plummer, and that all the while James H. Wyman was such cashier at Austin, officing with said R. H. Baker. The direct evidence of the powers and duties of the two cashiers is meager. In the contract with Baker and with Marx & Plummer as general agents, there is a provision that the society reserves the right to appoint a cashier to keep the accounts and make collections. He is to keep exclusive control of all policies, renewal receipts, and other vouchers, "subject to the rules of the society and the instructions given by its principal officers." The general agent may collect a first premium, but must remit it to the cashier, and the cashier may order return of policies where the first premium has not been collected. It is fair to assume that parties occupying such responsible positions had written contracts carefully defining their powers and duties; yet, with the pleading of appellee specifically charging a waiver by these cashiers, appellant produces no contract, and offers not even the parol testimony of any executive officer, to show what powers were in fact confided to them, or what powers they ordinarily exercised. It has always been ruled that failure to produce testimony peculiarly within the knowledge and control of a party is proper matter for consideration by a jury.

We gather from the reservation in the general agents' contract that the cashier would be subject to certain "rules of the society" and to "instructions" to be given by its principal officers. If those rules and instructions would have supported appellant's contention that its agents were, in their dealings with Ellis, exceeding their "instructions," we are prepared to believe their very able counsel would not have left the matter open to conjecture or speculation. That these cashiers had power to appoint agents to collect or receive premiums appears from the notice sent to Ellis, as required by law, calling attention to the premium to mature March 24, 1906. He is there told he may pay same to James H. Wyman, cashier, Austin, "or to such person as he may duly appoint." His power was certainly not ministerial, nor his duties those calling for the exercise of no discretion. He is the sole representative of the company as to the very important matter of collecting premiums. He is the only person with whom the policy holder can deal. He is put there as the company's representative touching all matters incident to collecting the premiums. He may deal with the insured in person or by his selected representative. That the matter of extension of premiums pertained to them is indicated by the general agents, Marx & Plummer, and the general manager, Baker, referring to the cashier the request for an extension made by Ellis.

While the fact of agency may not be shown alone by the acts or declarations of the alleged agent, yet, when the relation is established and the scope thereof is under inquiry, then, in the absence of fraud, we see no good reason why the authority in fact exercised may not be considered. This particularly where the principal offers no testimony as to the exact scope of the agent's power, and does not offer to show want of knowledge of the exercise thereof. Here, on March 12, 1905, Ellis applied to Marx & Plummer for an extension of the premium then nearly due. Instead of replying, they evidently referred the same to Cashier Bourke, who on March 15, 1905, replied thereto. That was the inception of much correspondence between Bourke, acting or assuming to act for the company, and Ellis. Some of the letters by Bourke are entirely in keeping with appellant's insistence as to his powers and duties; but others are not. He, for instance, makes propositions to Ellis to change the payment of premiums from annually to semiannually or quarterly at a different rate. He also quotes Ellis term rates and rates for irregular premiums. Again, on August 21, 1905, as one extension was about to expire, Bourke, in asking for a check to cover a second extension which is being considered, says: "I would suggest that you give this matter your prompt attention as the extension expires on the 22nd of this month, which I have extended giving time to receive your remittance and the enclosed request duly signed"; and on August 24th, after the expiration of the previous extension, in connection with proposal to request the home office for another, Bourke urges Ellis to send in the check, saying that he would be protected pending the negotiations "through my having this remittance." The time for payment of balance of the 1905 premium was finally extended to December 22d, and on November 15th Gerald F. Brophy, superintendent, advised Ellis that the society would accept same if paid on or before December 22, 1905. On that day Ellis mailed from Sartartia to Bourke at San Antonio exchange therefor, and this could not reach San Antonio before December 23d, one day too late. But Bourke receives same and receipts therefor on December 27th. A part of his duties was to keep the company's books and deposit collections in bank to its credit. It is fair to assume that he did so here, and the entry of this large payment could not have appeared thereon...