Jefferson Standard Life Ins. Co. v. Baker

• Decision Date: 01 March 1924
• Docket Number: (No. 9039.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 260 S.W. 223
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. BAKER et al.
• Court: Texas Court of Appeals

260 S.W. 223

JEFFERSON STANDARD LIFE INS. CO. v. BAKER et al.

(No. 9039.)^*

Court of Civil Appeals of Texas. Dallas.

March 1, 1924.

Rehearing Denied March 29, 1924.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Action by Fannie Lee Baker and others against the Jefferson Standard Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.

Webb & Webb, of Sherman, for appellees.

VAUGHAN, J.

This was an action on a life insurance policy. The application was made on the 15th day of September, 1920, at Gunter, Grayson county, Tex., by Thee Zack Baker, through C. E. Brown, agent of appellant, for insurance on his life in the sum of $2,500 for the benefit of his mother, Fannie Lee Baker, and paid thereon the sum of $73 as the first annual premium in the event his application should be accepted and policy issued. The principal and home office of appellant was at Greensboro, N. C. Thee Zack Baker was examined at Gunter, Tex., by one of appellant's field physicians. The report of said examination was turned over to the said C. E. Brown, and by him mailed, together with said application, on the 16th day of September, 1920, or some day thereafter, to the home office of appellant. Some time thereafter, and prior to the 2d day of October, 1920, appellant's medical board, at its home office, examined said report and approved the same for insurance. Between the date of September 23 and October 2, 1920, appellant made out the policy of insurance sued on, and forwarded it to the said agent Brown at Gunter, Tex., and was received by him on the 2d day of October, 1920, and on that day handed to the said Thee Zack Baker, who returned the policy to the said Brown at once, requesting him to place it in the bank at Gunter, where it was found after his death. No second annual premium was paid. Thee Zack Baker died on the 19th day of October, 1921.

The policy sued on contained photographic copies of said application and medical report. The application contained the following:

"That the company shall incur no liability under this application (unless properly executed conditional receipt bearing the same number as this application has been delivered to me, and then only subject to its provisions), unless and until (a) it has been received and approved; (b) the policy issued and actually delivered; (c) the premium has been actually paid to and accepted by the company or its authorized agent, all during my lifetime and while I am in good health."

The policy contained the following:

"This policy and the application therefor, or parts 1 and 2, copies of which are attached hereto, constitute the entire contract, and no statement shall void any payment under this policy or be used in defense of any claim hereunder unless it is contained in one of these instruments."

The latter clause meant the policy application and medical examination and photographic copies as attached to and made a part of said policy and so designated as parts 1 and 2. The first clause above set out was the part No. 1 referred to in the last clause set out. No such executed conditional receipt bearing the same number as the said application was attached to and made a part of the policy or of parts 1 and 2 of the attached copy of said application. Further, no such conditional receipt or copy of same was attached to or made a part of the policy issued.

Appellees allege that the policy contract was not binding upon appellant, and was not in fact executed until the said application was received and approved, which was on or after the 23d day of September, and prior to the 2d day of October, 1920, and not until the policy was issued and actually delivered to the said Thee Zack Baker on the 2d day of October, 1920, and that the anniversary of the policy was on the date of the delivery of same, to wit, October 2, 1920; and, in the alternative, if mistaken in this date, then a date previous thereto and not before the 23d day of September, 1920, the earliest date on which the policy could possibly have been issued. And, further, that Thee Zack Baker paid the first premium of $73 before the policy was delivered to him, and that according to its provisions a second annual premium was not due until 30 days after the anniversary of the policy, which was the 2d day of October, 1920, or at some prior date not earlier than the 23d day of September, 1920; that 30 days after the anniversary of the policy was the 2d day of November, 1921; and that according to the terms of the policy appellant insured the life of Thee Zack Baker for 1 full year and 30 days thereafter, which expired not earlier than the 23d day of October, 1921, and that on the 19th day of October, 1921, while said policy was in full force and effect, Thee Zack Baker died.

It is the contention of appellant that because the date of the application for the policy was the 15th day of September, 1920, the date the policy bore, and which was accepted and retained by Thee Zack Baker until his death, there being no proof of any fraud or mistake as to the date of the policy, the 15th day of September was the anniversary of the policy, therefore the second premium fell due on the 15th day of October, 1921, and, as the premium was not then paid, and never was paid, the policy forthwith lapsed.

This involves the only questions necessary to be discussed in order to dispose of this appeal, to wit, were appellees estopped to question the date borne by the policy of insurance, September 15th, 1920, as the true date because same was received with that date by Thee Zack Baker and retained by him until his death without objection being made thereto? Did the word "anniversary" as used in said policy, viz., "and of the payment of a like sum each year on each anniversary hereof until twenty full years have been paid," have...