First Texas Prudential Ins. Co. v. Connor

• Decision Date: 13 February 1919
• Docket Number: (No. 931.)
• Citation: 209 S.W. 417
• Parties: FIRST TEXAS PRUDENTIAL INS. CO. v. CONNOR.
• Court: Texas Court of Appeals

209 S.W. 417

FIRST TEXAS PRUDENTIAL INS. CO. v. CONNOR.

(No. 931.)

Court of Civil Appeals of Texas. El Paso.

February 13, 1919.

Rehearing Denied March 6, 1919.

Appeal from El Paso County Court at Law; W. P. Brady, Judge.

Action by Florence Connor against the First Texas Prudential Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Turney, Culwell, Holliday & Pollard, of El Paso, for appellant.

Jackson & Isaacs and M. V. Ward, all of El Paso, for appellee.

Statement of Case.

HIGGINS, J.

This suit originated in the justice court. It was brought by appellee against appellant to recover the sum of $191.50 alleged balance due upon an insurance policy issued by appellant in the sum of $500 upon the life of Louisa Holder, naming appellee as beneficiary. In bar of the action, appellant set up a release reading as follows:

"First Texas State Insurance Company. Claim Draft. No. 11293. Home Office: Galveston. Date, June 18th, 1917. When properly indorsed on back hereof, at sight, pay to the order of Florence Connor, Chas. Connor, beneficiaries, and Peak Und. Co., assignee, two hundred fifty-eight dollars ($258.00), and such indorsement hereon by payee shall constitute a receipt for the amount hereof in full discharge, settlement, and compromise of all claims under policy No. 51598, which payee has or may have against the First Texas State Insurance Company on account of any injury sustained and all disease or sickness contracted prior to date hereof, including all disability and loss of time, and death of Louisa Holder resulting from any, either, or all of said causes from and after May 20, 1917. In addition to the above sum, $51.50 due me, on account of the above claim, was applied on note. To First Texas State Insurance Co., Galveston, Texas.

                                     T. E. Flick, Adjuster."
                

The release was indorsed by the payees therein named and paid by appellant. Charles Connor, one of the payees, is the husband of appellee. Peak Undertaking Company, another payee, had buried the deceased, and was made a payee to secure its charges.

It seems that, in making out the proof of death, appellee erroneously stated the age of the assured to be greater than it really was. The policy contained this provision:

"Misstatement of Age. If age of insured was understated in application for this policy, the amount payable hereunder shall be the insurance which the premium paid would have purchased at the true age of insured."

It was agreed upon the trial that, if Louisa Holder was 57 years old at the time of the issuance of the policy, the published rate of $1.95 would pay for insurance on the life of a person that age in the sum of $309.50, and, for a person 47 years of age at the time the policy was issued, paying a premium of $1.95 would entitle the insured or the beneficiary to the payment of $500.

In making settlement, appellant deducted the sum of $191.50 upon the theory that the deceased, as shown by the proof of death, was 57 years old at the date the policy was issued. Upon the trial, which was without a jury, appellee, without objection, testified that in making out the proof she made a mistake as to the age of assured,...