Great Southern Life Ins. Co. v. Dolan

• Citation: 239 S.W. 236
• Decision Date: 19 January 1922
• Docket Number: (No. 1264.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GREAT SOUTHERN LIFE INS. CO. v. DOLAN.
• Court: Court of Appeals of Texas

239 S.W. 236

GREAT SOUTHERN LIFE INS. CO. v. DOLAN.

(No. 1264.)^*

Court of Civil Appeals of Texas. El Paso.

January 19, 1922.

Rehearing Denied March 30, 1922.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Action by Lura Lee Dolan against the Great Southern Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jno. L. Dyer, Gowan Jones, and C. W. Croom, all of El Paso, for appellant.

Brown & Whitaker and Lea, McGrady, Thomason & Edwards, all of El Paso, for appellee.

WALTHALL, J.

Appellee, Lura Lee Dolan, individually and as survivor of the community estate of herself and her deceased husband, Hays Pat Dolan, brought this suit against Great Southern Life Insurance Company and Lee Glasscock to recover $15,000 insurance on the life of her deceased husband, Hays Pat Dolan, together with statutory penalty and attorney fees.

The pleadings on the part of appellee, summarized, present, substantially, the following facts:

On March 27, 1918, appellant insurance company, acting through its agent, Lee Glasscock, made a contract with H. P. Dolan for a valuable consideration, the substance of which was that the company from said date insured the life of said Dolan, and promised to pay her, as beneficiary in said contract, the sum of $15,000, upon proof to it of the death of said Dolan, on condition that he, said Dolan, should comply with his part of the contract, which was that said Dolan would pay the company or its agent annual premiums each in the sum of $390.45, or approximately that amount, during the life of said Dolan, and while said contract was in force, and that said Dolan did, at the time of making said contract, pay the company through Lee Glasscock said sum of $390.45 as the first annual premium, and did answer in writing all questions propounded to him upon the printed forms furnished by the company for that purpose, and submitted to the usual medical examination before a physician or medical examiner as demanded by the company; that it was agreed between Dolan and the company, acting through Lee Glasscock, that said contract of insurance should become binding on the company and in full force and effect from the said payment of the premium, and that the company in due course of time would issue to Dolan a more formal life insurance policy in the sum as above, with her as beneficiary, but that through some fault or neglect on the part of the company, its agents and employés, the company never issued such policy, or, if they did, same was not received by said Dolan; that the only other requirement on the part of the company was the annual payment of the premium; that the said contract was in part verbal, the full details of which she does not know, but the company, its agents and employés do know and refuse to acquaint her with same; that Dolan signed and delivered to the company, through Glasscock, a written application, setting out some additional details of said contract, which application is now in the possession of the company, and was accepted by it, and was never returned to said Dolan or any further notice given to him with reference to it, and that after such application was made by Dolan the company, for value waived all requirements therein imposed upon Dolan other than such of its stipulations as Dolan complied with.

It was further alleged that, if it should appear that Glasscock did not have authority from the company to make such a contract with Dolan as stated, the company held him out as having such authority, and he had apparent authority so to do, and said Dolan was not advised of any limitation upon the authority of Glasscock; that after Glasscock made said contract with Dolan the company was informed of same, ratified it, accepted said application, received and appropriated said first premium, and failed to give to Dolan any notice of the company's action on said application, and failed to require of Dolan any further or additional information, and led Dolan and appellee to believe that the company had insured Dolan's life for $15,000, and thereby prevented Dolan from securing life insurance in some other company, which he would have done, and allowed Dolan to die believing that his life was so insured, and that by reason of said acts and conduct of the company it is estopped to deny such contract, and that Glasscock had authority to make same. The petition alleges the death of Hays Pat Dolan on December 1, 1918, the making of the proofs of his death, denial by the company of liability; demand of payment and refusal to pay; that the company still retains and appropriates said first premium of $390.45, its refusal to pay same, the company's liability for said first premium in the event it is not liable for the amount of the insurance. The court having adjudged that appellee take nothing as against Lee Glasscock, and appellee having taken no exception or presented a cross-assignment of error as to him, we need not state appellee's pleadings as to Glasscock.

The insurance company, in substance, pleaded misjoinder of parties defendant and causes of action; general demurrer, and special exceptions; general denial; pleaded the application of Hays Pat Dolan referred to by appellee in her petition for life insurance and the terms of said application; alleged that Lee Glasscock was only the soliciting agent of the company, and had no authority, either verbally or in writing, to bind the company; alleged that said application for insurance was received, disapproved, rejected, and not accepted, but declined, and that no policy of insurance was issued on the application or by reason thereof; alleged that it is true that Glasscock did receive from Dolan the sum of $390.45, and tenders into court for the use and benefit of appellee said sum and interest; alleges that Glasscock has kept and retained said $390.45, and that it is entitled to recover from him said sum and interest, for which it prays judgment.

Lee Glasscock filed answer, but as he has not appealed from the judgment we need not state his pleading.

By her first supplemental petition appellee pleaded general denial of the affirmative matters contained in appellant's pleading as above, alleged that appellant had full knowledge of the facts, and waived all of the provisions pleaded by it as contained in the application made by Hays Pat Dolan, and after receipt of said application and with full knowledge of the contract made by its agent, Lee Glasscock, appellant ratified and approved said contract made by said Glasscock on its behalf, accepted the benefits thereunder, accepted the offer made by Dolan in said application, and that if Glasscock had no authority to bind the company he had apparent authority to do so, and that appellant held him out as having full authority; that Dolan relied on such apparent authority in dealing with Glasscock as appellant's agent; alleged that appellant received Dolan's application and never rejected same, failed to give Dolan notice of the company's action on said application, failed to require of Dolan any further or additional information, and led Dolan to believe that the company had insured his life for $15,000, and to retain such belief continuously for a period of about nine months and until his death, in December, 1918, and that by reason of said acts and conduct appellant is estopped to deny that it made the alleged contract with Dolan through Glasscock, and to deny that Glasscock had authority to make such contract, and to deny that Glasscock had authority to waive any or all of the provisions in the application pleaded by appellant.

Appellant by its first supplemental petition answered by general demurrer, special exceptions pointing out the matters excepted to, and general denial. Appellee by her first trial amendment pleaded a waiver by appellant of the provisions pleaded by it in the application made by Dolan, in that it had notice that Glasscock had agreed with Dolan that his contract with Dolan should be in force from the date of the application, and repleaded other matters not necessary to state. Appellant by its first trial amendment pleaded general demurrer, special exception, and general denial.

Findings of Fact.

In view of the many issues, both of fact and law, presented in this appeal, we have concluded to make findings of fact, including those presented to and found by the jury, and to dispose of the case upon what we think are the material and controlling issues of fact and law.

Without reproducing the evidence at length the record discloses, substantially, the following:

A short time prior to the solicitation for insurance giving rise to this suit, Hays Pat Dolan had taken out a policy of insurance for $10,000 with the Wichita Southern Life Insurance Company through Lee Glasscock, its agent; that this company and the policy were taken over by appellant shortly but prior to the solicitation of Hays Pat Dolan for insurance involved in this suit. Lee Glasscock was the agent of appellant in soliciting life insurance, and solicited Hays Pat Dolan to make application to appellant for $15,000 life insurance. In soliciting Dolan for insurance for appellant, Glasscock mentioned to Dolan the health certificate and examination in the Wichita Southern Life Insurance Company, and expressed himself to Dolan as being satisfied that his health certificate would be all right.

On March 12, 1918, the president of appellant company addressed a letter to Dolan, assuring him that appellant had reinsured and taken over all insurance policies of the Wichita Southern in force on that date, and inclosing to Dolan a certificate by which appellant by letter and certificate formally assured Dolan's policy in the Wichita Southern, and guaranteed it according to its terms, and assured Dolan that appellant was glad to have him as a policy holder. On the 27th of March, 1918, on the solicitation of Lee Glasscock, Dolan made application to appellant for life...