Fitzmaurice v. Mutual Life Ins. Co.

• Decision Date: 18 March 1892
• Citation: 19 S.W. 301
• Parties: FITZMAURICE v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Texas Supreme Court

19 S.W. 301

FITZMAURICE v. MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of Texas.

March 18, 1892.

Appeal from district court, Webb county.

Action by Eliza Fitzmaurice against the Mutual Life Insurance Company of New York. Judgment for defendant. Plaintiff appeals. Affirmed.

Nicholson & Dodd and L. P. Bryant, for appellant. Fiset & Miller, for appellee.

HENRY, J.

This suit was brought by the appellant to recover upon a policy of insurance issued by the appellee upon the life of her husband, William Fitzmaurice. The policy was made a part of plaintiff's petition, and, among others, it contained the following clause: "Notice to the holder of this policy: No agent has power on behalf of the company to make or modify this or any contract of insurance; * * * to bind the company by making any promise, or by receiving any representation or information not contained in the application for this policy." The policy begins as follows: "In consideration of the application for this policy, which is hereby made a part of this contract," etc. The defendant answered, and alleged that the contract was contained in said policy, and the application therefor, and attached said application as an exhibit; that the application duly signed by the insured contained, among other clauses, the following: "I also agree that all the foregoing statements and answers * * * are by me warranted to be true, and are offered to the company as a consideration of the contract;" that above this warranty was the following question: "(15) Has any proposition or negotiation or examination for life insurance been made to this or any other company or association, on which a policy has not been issued? State when, and in what company," — which the applicant answered in the negative; that applicant's said answer was false, etc., and the policy was thereby avoided, etc.; that on or about the 21st day of March, 1889, at Laredo, Webb county, Tex., said Fitzmaurice did make an application to the Equitable Life Insurance Society of the United States for life insurance to the amount of $2,500, and on or about the 22d day of March, 1889, he was examined for life insurance by Dr. J. M. McKnight, medical examiner for said society, and said application and medical examiner's report were furnished to said society, and on or about the 1st day of April, 1889, said application was rejected, and no policy was ever issued thereon. The plaintiff filed a supplemental petition, in which she alleged: "That, at time said William Fitzmaurice made his application for insurance in defendant company, he made same at the special instance and request of defendant's agent, one T. E. Campbell; that at the time said application to defendant was made, and by virtue of which the policy sued on herein issued, the said agent, T. E. Campbell, was present, assisted in writing down, and did write down the answers of said Fitzmaurice, and that after the said answers, each and all, as contained in said application, had been so written down, and said Fitzmaurice had signed his name thereto, and after the medical examiner of defendant, one A. W. Wilcox, — the agent, also, of defendant, — had examined said applicant, as required, under the rules of defendant, and after the said Wilcox had signed said application as such medical examiner, said application was delivered to defendant's said agent, T. E. Campbell, who read the same in full, and was fully advised, and knew just what Fitzmaurice's answers and statements were, as therein contained; and that...