Green v. Missouri State Life Ins. Co.

• Decision Date: 19 February 1920
• Docket Number: (No. 1064.)
• Parties: GREEN v. MISSOURI STATE LIFE INS. CO.
• Court: Texas Court of Appeals

219 S.W. 552

GREEN v. MISSOURI STATE LIFE INS. CO.

(No. 1064.)

Court of Civil Appeals of Texas. El Paso.

February 19, 1920.

Rehearing Denied March 18, 1920.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

Action by Mrs. Lorena B. Green against the Missouri State Life Insurance Company. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Kirby, King & Keeble and Jno. W. Wood, all of Abilene, for appellant.

Cunningham & Oliver and J. M. Wagstaff, all of Abilene, and Jourdan, Rassieur & Pierce, of St. Louis, Mo., for appellee.

HARPER, C. J.

This action was brought by appellant against appellee for $2,000, interest thereon, 12 per cent. penalty, and attorney's fees upon life insurance policy issued to Thomas M. Green. From a judgment in favor of defendant company plaintiff appeals.

The defendant answered by general demurrer, general denial, and specially pleaded:

That the policy contained the clause "That if within one year from the date of this policy the insured shall die by self-destruction, sane or insane, the liability of the company shall be limited to an amount equal to premiums paid under said policy. That the policy sued upon provided for payment by defendant to plaintiff, who was named as the beneficiary of the sum of $2,000, upon receipt of proofs of death subject to the happening of the contingencies mentioned in the policy. That said Thomas M. Green died by self-destruction by administering to himself carbolic acid, a deadly poison * * * whereby said Thomas M. Green died.

"That the only premium which had been paid was $71.20, and that under the stipulation this was all that was due upon the policy. That said sum has been paid and been accepted in full satisfaction of all claims and demands under the policy.

"That in due time plaintiff furnished proofs of death, in which plaintiff, in answer to a question as to what was the immediate cause of death, stated, `Apparent carbolic acid poisoning,' meaning that his death was apparently due to carbolic acid poisoning.

"That as a part of said proof of death plaintiff furnished a statement by the attending physician, to wit, Dr. Wade H. Walker, being in writing, subscribed and sworn to, in which said Dr. Walker stated the remote cause of death to be `carbolic acid poison,' and the immediate cause `carbolic acid poison.'"

The plaintiff specially excepted to the allegations:

First. That plaintiff stated in proof of death that death was apparently due to "carbolic acid poisoning," because it was not binding upon the beneficiary, and constitutes no defense to an action upon the policy.

Second. To the pleading that Dr. Walker's affidavit to the same effect, upon the ground that it was immaterial and improper for the reason that the certificate of the doctor as alleged is not binding upon the plaintiff, and constitutes no bar to her right to recover on the policy; (b) because it was purely ex parte and hearsay; (c) does not, and could not, establish the defense as alleged in this case.

By several assignments and propositions appellant urges error in overruling these exceptions and permitting defendant to read the...