Federal Life Ins. Co. v. Hoskins

• Decision Date: 01 April 1916
• Docket Number: (No. 7429.)
• Citation: 185 S.W. 607
• Parties: FEDERAL LIFE INS. CO. v. HOSKINS.
• Court: Texas Court of Appeals

185 S.W. 607

FEDERAL LIFE INS. CO. v. HOSKINS.

(No. 7429.)

Court of Civil Appeals of Texas. Dallas.

April 1, 1916.

Rehearing Denied April 29, 1916.

Appeal from Dallas County Court; T. A. Work, Judge.

Action by John T. Hoskins against the Federal Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawther, Pope & Mays, of Dallas, for appellant. George, Hancock & Hardwicke, of Dallas, for appellee.

RASBURY, J.

Appellee sued appellant to recover $210, the amount of a note executed by appellee in favor of appellant and by it transferred to the White Banking Company before maturity for value. There was a trial by jury, to whom the court referred certain special issues of fact, upon the answers to which judgment was for appellee; hence this appeal.

From the findings of the jury which are supported by the evidence the following facts are deducible: Appellant, through its duly authorized agent, agreed to insure appellee's life in the sum of $5,000 from April 3, 1913, to October 1, 1914. The rate of the insurance fixed by the company was $85 per thousand annually, which was known both to appellee and appellant's agent, but was reduced to the sum stated for that period, appellee assigning one reason for the reduction, and appellant another, the true reason being neither important nor controlling. At the time appellee and appellant's agent reached their agreement, which was April 3, 1913, appellee executed his note for the agreed sum of $210, due October 1, 1914, payable to the agent, to whom it was delivered, and who promptly negotiated it with the White Banking Company. Subsequently, on April 25, 1913, the policy was issued and by the agent delivered to appellee. Two days after the policy was delivered appellee examined same and found that it was not in compliance with the agreement, in that it was issued covering the period from April, 1913, to April, 1914, when it should have covered the period from April, 1913, to October, 1914. Appellee returned the policy to appellant and demanded the return of his note. This appellant declined to do. Subsequently, after ineffectual efforts to adjust the matter, suit was filed. Any details of the evidence necessary to a proper disposition of the assignments will be stated while considering same.

The first issue raised attacks the action of the court in overruling appellant's general demurrers directed against appellee's amended and supplemental petitions. The pleadings so attacked in substance charge that appellant's agent represented to appellee that appellant would, in consideration of the $210 note insure appellee against death from April, 1913, to October, 1914, in the sum of $5,000, although she knew at the time such representation was made the appellant would not do so, but made the representation with the fraudulent intent and purpose of inducing appellee to execute the note in order that she might negotiate same with an innocent purchaser, and thereby defraud appellee, and that, relying upon such representations, appellee did execute and deliver the note to said agent, who did, in pursuance of such fraudulent scheme, sell and transfer same to White Banking Company, who was a bona fide holder for value of same, and that in such connection he signed at the request of the agent an application for such insurance, which she represented contained the agreement made, and on which representation appellee relied, but that the agent fraudulently wrote therein the provisions that he was to pay a greater sum than agreed, and that the policy should only cover a period of one year, and that thereafter, upon delivery of the policy and his discovery that it did not comply with the agreement so made, repudiated same, etc.

The proposition asserted is that the court should have sustained the general demurrers on the ground that the facts alleged constituted no ground for recovery, for the reason that appellee, in the absence of any showing of inability to read, or any trick, fraud, or artifice resorted to to prevent his reading, the contract, was bound by its plain unequivocal, and express terms, and could not rescind same because due to his own negligence and carelessness; or, to apply the rule invoked to the facts in this case, that it was the duty of appellee to read the application or contract, and not rely upon the representations of the agent that it contained the agreement actually made. The rule is otherwise. It has been held, under a plea alleging false representations concerning an application for policy of insurance, that when the insured is induced to sign an application by false representations of the agent to the effect that it provides for such policy as agreed upon, while, as matter of fact, it called for another and materially different policy, the insured is not estopped from setting up such false representations, unless inexcusably negligent in not informing himself, though he could have done so by reading the application at the time he signed same. Mutual Life Ins. Co. v. Hargus, 99 S. W. 580; Compagnie Des Mataux Unital v. Victoria Mfg. Co., 107 S. W. 651. In the case of Equitable Life Ins. Co. v. Maverick, 78 S. W. 560, where the facts are practically identical with those in the instant case, the trial court was requested to charge the jury:

"That, if plaintiff failed to avail himself of the means at hand of ascertaining the truth or falsity of the agent's representations, he was estopped to complain of their untruth."

The charge was refused by the trial court, which was on appeal assigned as error, and in sustaining the action of the lower court the appellate court said:

"If plaintiff knew the truth of the matter, he could not claim that he was deceived. But, if he did not know it, and relied on the statement of the agent at the time, but could have informed himself of it by means of information at hand, he is not necessarily estopped. This would depend upon whether or not he was inexcusably negligent in not informing himself."

Whether he was inexcusably negligent was a question of fact for the jury, and that issue was submitted to the jury in the instant case and resolved in favor of appellee's contention. We conclude therefore that the demurrers were properly overruled.

The next issue is raised by grouping 11 assignments of error, in obvious and flagrant violation of the rules,...