Kansas Mut. Life Ins. Co. v. Coalson

• Decision Date: 26 October 1899
• Citation: 54 S.W. 388
• Parties: KANSAS MUT. LIFE INS. CO. v. COALSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 388

KANSAS MUT. LIFE INS. CO. v. COALSON.¹

Court of Civil Appeals of Texas.

October 26, 1899.

Appeal from district court, Harris county; John G. Tod, Judge.

Action by Mrs. Jemison E. Coalson against the Kansas Mutual Life Insurance Company on two policies. From a judgment for plaintiff, defendant appeals. Reversed as to one policy, and affirmed as to the other.

Maurice E. Locke and Robert T. Herrick, for appellant. Hutcheson, Campbell & Myer, for appellee.

GILL, J.

Mrs. J. E. Coalson, the appellee, brought this suit against appellant, a life insurance company, to recover upon two insurance policies; the risks having been written by appellant upon the life of her husband, Paul Coalson, who died in February, 1898. The policies were for $5,000 each, and appellee, the wife, was named as beneficiary in each. The policies were numbered 16,173 and 17,030, respectively, and, for convenience, will be hereafter referred to by number, without other designation. The defendant company answered, admitting the execution of the policies as alleged, and conceding plaintiff's cause of action, except in so far as it might be defeated, in whole or in part, by defensive matter set up in the answer; thus securing the right to open and conclude. Such defensive matter as pleaded consisted: (1) Of an allegation that deceased came to his death by suicide. (2) That in the application for policy No. 16,173 deceased answered, among other things, that his occupation was that of a physician, which was untrue. (3) He answered that, in an attack of la grippe suffered by deceased, he did not employ a physician, which was false. (4) He answered that he had made no previous application for life insurance upon which a policy had not issued, which was averred to be false. (5) That, by the terms of the policy itself, the application and medical examiner's report were made a part of the contract, and that each and every answer was expressly warranted to be true, their truth being made a condition precedent to liability, so that a breach of any one, without reference to its materiality, would be a complete bar to recovery. To policy No. 17,030 appellant made like answer, setting up suicide, and two breaches of warranty, namely: (1) That deceased answered in his application that he had upon his life an insurance policy for $2,000 in the Mutual Reserve Fund Life Association, and that such answer was false, such policy having lost its validity at the date of the application, by reason of nonpayment of premium. (2) He answered that he had theretofore made no application for life insurance upon which a policy had not issued, which was false. As to this policy, also, it was averred that the application was, by the terms of the policy itself, made a part of the contract, and the answers were warranted to be true. Both policies contained the "suicide clause." Other answers in each application were pleaded, and alleged to be false, but were found by the jury to be true, and such only are set out here as we consider necessary to notice specifically in the disposition of this appeal. To these defenses plaintiff replied by general denial, and further averred that such answers were merely representations, of a nature not material to the risk; and, further, that, if false, their falsity was known to Fred W. Fox, the company's agent through whom the application was made and forwarded, and to Dr. Daniels, the company's medical examiner, who examined deceased for both policies of insurance. Upon the trial the application for policy No. 17,030 was admitted in evidence without objection. The character and effect of the evidence offered thereunder and the verdict thereon will be discussed further on in this opinion. When appellant offered the application for policy No. 16,173, appellee admitted that it was signed with the genuine signature of deceased, but objected to its admission, on the ground that it bore evidence upon its face of having been altered in material respects. The objection was sustained by the trial court, after an inspection of the document, and proof was heard in explanation. Thereupon the paper, together with the evidence bearing upon its integrity, was sent to the jury. The case was submitted to the jury upon special issues. Judgment was rendered upon verdict in favor of appellee for the amount of both policies, for 10 per cent. attorney's fees, and a 12 per cent. penalty, under the statute. This appeal was perfected, and the case is before us upon assignments of error which we hold are sufficient to require the notice of this court. Many objections are urged to the brief and assignments of appellant. While it is clear that in some respects they are not prepared in strict accord with the rules, we think the matters of which appellant complains are fairly before the court.

Inasmuch as appellant's sixth assignment of error relates to each of the policies sued on, urging, as it does, the defense of suicide, it will be considered first. In view of the disposition of this appeal, in part, at least, we refrain from entering into a review of the evidence touching this issue. We have carefully considered all the evidence bearing upon the question, and are of opinion that this court ought not to disturb the finding of the jury that deceased came to his death from natural causes.

Appellant's first, second, and third assignments of error assail the action of the trial court in refusing to permit the application for policy No. 16,173 to go unchallenged to the jury (they having found it materially altered, and that appellant was responsible for it), because defendant's answer was based in part thereon, and averred its execution by Paul Coalson, and there was no pleading on the part of plaintiff, either verified or otherwise, questioning the validity of the application. Under these assignments, it is insisted that, while it is true the instrument is not charged in terms to have been executed by appellee or by her authority, it nevertheless comes within the provision of Rev. St. art. 1265, § 8, requiring the verification of certain pleas. The contention is also made that, without reference to the application of the statute cited, it was clearly the duty of appellee, by some affirmative plea, to set up the nature and extent of the alleged alteration, and, this not having been done, the action of the court in permitting it to be challenged in any respect is assailed as error. Since a plea admitting the execution, but setting up a material alteration, of a written instrument, is, in our opinion, not a plea of non est factum, and not such a plea as our statute requires to be verified (Heath v. State, 14 Tex. App. 213; Dewees v. Bluntzer, 70 Tex. 406, 7 S. W. 820; Ruiz v. Campbell, 6 Tex. Civ. App. 714, 26 S. W. 295), we do not deem it necessary to decide whether the beneficiary in an insurance policy bears such a relation to the deceased applicant as to come within the provision in Rev. St. art. 1265, § 8. The question of greater difficulty is whether an instrument, such as the one in question, can be attacked on the ground of alteration, in the absence of pleading raising the question. Were it not insisted that the alteration is apparent upon the face of the instrument, we would not hesitate to hold that the question must be raised by a plea on the part of the person asserting alteration, and that the burden of proof to show alteration would devolve upon the party asserting it. Wells v. Moore, 15 Tex. 521; Irvin v. Garner, 50 Tex. 48; Muckleroy v. Bethany, 27 Tex. 551. In this case, however, the court below acted upon the assumption that the instrument not only bore upon its face marks of alteration, but that, of itself, it furnished evidence that such alterations were unauthorized, and made after delivery. The trial court must have so held; for the rule seems to be that, though alterations of a material character should be apparent upon the face of the instrument offered, yet, if nothing appears to the contrary, the presumption obtains that such alterations were authorized, or were made at or before delivery. Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296.

If, then, the court was correct, no plea on the part of appellee was necessary; for not only is the party offering such instrument supposed to be prepared with proof to account for the alteration, which, if apparent to others, must also be apparent to him, but, in the absence of such explanation, the document itself impeaches its own validity, and is excluded, not because of any issue made by the pleadings, but because, by reason of its infirmity, it is insufficient to raise an issue in the evidence which would authorize its submission to the jury. A general denial would require its production (Matossy v. Frosh, 9 Tex. 610; Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296); and if, in compliance with this requirement, an instrument is offered which, of itself, clearly shows it is not the genuine instrument pleaded, it is properly excluded, until evidence is offered tending to explain the apparent alteration, and rebut the presumption thus raised (Machine Co. v. Peterson [Kan. Sup.] 33 Pac. 470). Justice Robertson, in Pasture Co. v. Preston, 65 Tex. 448, uses the language: "In making the proof upon which such paper gets to the jury, the party offering it proceeds ex parte. If, without considering any other evidence than that produced by him, there is enough to raise an issue of fact upon the genuineness of the document, it is proper for the court to allow the paper to go before the jury, and the issue of fact is then determined by them, after hearing all the testimony on both sides,"—citing Williams v. Conger, 49 Tex. 594; Gainer v. Cotton, Id. 118; 1 Greenl. Ev. § 21. Continuing, he says: "The preliminary proof before the judge is merely an earnest of the issue. What shall be sufficient for this purpose cannot probably be embraced in any definition which would suit the peculiar facts of every...