Laughlin v. Fidelity Mut. Life Ass'n

• Decision Date: 03 October 1894
• Parties: LAUGHLIN et al. v. FIDELITY MUT. LIFE ASS'N.
• Court: Texas Court of Appeals

28 S.W. 411

LAUGHLIN et al. v. FIDELITY MUT. LIFE ASS'N.

Court of Civil Appeals of Texas.

October 3, 1894.

Appeal from district court, Ellis county; Anson Rainey, Judge.

Action by Mollie A. Laughlin and others against the Fidelity Mutual Life Association. Judgment for defendant. Plaintiffs appeal. Affirmed.

Appellants sued appellee to recover the sum of $2,000 upon a life insurance policy which appellants allege was issued on April 28, 1891, by appellee, upon the life of Daniel P. Laughlin, who, at the time he obtained said policy, paid to appellee the first annual payment, which, under the terms of said policy, was full satisfaction of all dues under said policy up to April 28, 1892; that said Laughlin died on December 24, 1891, and appellants demanded of appellee the payment of said sum of $2,000, whereupon appellee denied all liability under said policy. The policy is attached to the petition, and made a part thereof. Appellee, in its answer, admitted the issuance of the policy sued upon and the receipt for first annual dues, as alleged by appellants, but, to avoid the policy, alleged that D. P. Laughlin, upon application for said policy, executed his note to appellee for $43.18, for the first annual dues, due October 24, 1891, which note contained a clause to the effect that, "if said note is not paid at maturity, the policy for which it was given should become ipso facto void"; and that said note was not paid at maturity; hence the policy sued upon was void. Appellants, by replication, admitted the execution of the note and the nonpayment of same at maturity, but say: (1) The note was accepted by appellee and its agent as a cash payment for the first annual dues, as shown by the recital of payment in both policy and receipt sued upon. (2) The said forfeiture clause in said note was rendered nugatory by other stipulations therein, inconsistent with said forfeiture clause. (3) Appellee has, by its acts, waived its right to forfeit said policy. Appellants also offered to deduct the amount of the note and interest from the proceeds of the policy. It is stated in the face of the policy that it is issued "subject to all the requirements hereinafter stated and the conditions hereon indorsed, which are hereby referred to and made a material part of this contract." Then, following, in the face of the policy, it is stated: "Provided any moneys required to be paid under this policy, during the continuance of this contract, must be actually paid when due to said association, at its home office in Philadelphia, Pa., but the same will be accepted, if paid, when due, to an agent, in exchange for a receipt signed by the president and treasurer, and countersigned by such agent, as evidence of payment to him; otherwise, this policy shall be ipso facto null and void, and all moneys paid thereon shall be forfeited to the said association." On the back of said policy are indorsed the following, viz: "No agent of the association has any power or authority to make, alter, or discharge contracts, waive forfeiture, or grant credit; and no alterations of the terms of this contract shall be valid, and no forfeiture hereunder shall be waived, unless such alterations or waiver be in writing, and be signed by the president of the association." Again: "If the policy lapse or become forfeited, it may be reinstated upon the approval of the medical director and president, provided the lapsed member be in good health and furnish evidence thereof; but such reinstatement or reinstatements shall be exclusively at the option of the association, and the terms of the contract shall not be varied or altered in any respect by any custom or course of dealing whatever." "A payment or notice of dues sent to the member, he having defaulted in payment, shall not be a recognition or restoration of this policy, which shall be and remain null and void until reinstated as aforesaid." The policy recites payment of the first year's premium and dues, and a receipt therefor, properly signed and absolute in terms, was given; but it is pleaded and admitted that not one cent was ever in fact paid, but, contemporaneous with the issuance of the policy, a note was given for the same, due six months after date, payable at the Citizens' National Bank, Waxahachie, in which note it is recited that, "if this note is not paid at maturity, policy No. 26,595, for which it is given, shall be ipso facto null and void, and shall remain so until restored as provided in its terms. It is expressly agreed and understood that in any event the maker of this note shall be liable for its face value, with interest from date hereof at 6 per cent. interest." The evidence showed that the insurance company had been doing a note business for about eighteen months. It was a departure from the regular rules of the company, and a special privilege accorded to Texas agents. The state agent had a contract with the company to guaranty such notes to the extent of the actual cost of carrying the policy to the time of the maturity of the notes. If the notes were not paid at maturity, they became the property of the state agent, and the actual cost of carrying the policy up to that time was paid by such state agent. The actual cost of carrying this policy to the time of the maturity of the note, amounting to $6.11, was charged by the company to the state agent, Brown, and he was liable for it under his contract with the company. The note became his upon its nonpayment at maturity, and he paid the $6.11 to the company. The local agent testified that he demanded of the assured payment of the note after it fell due; payment was refused; and he told him between the 1st and 15th of November, 1891, that the failure to pay the note forfeited the policy. Other witnesses testified to inconsistent statements made by him. The note fell due October 24, 1891. The assured took sick December 9, 1891, and died December 24, 1891. On December 16, 1891, the policy was marked "Canceled" on the books of the association.

J. E. Lancaster and A. L. Love, for appellants. M. B. Templeton, for appellee.

FINLEY, J. (after stating the facts).

The cause was submitted to a jury, and, after all the evidence was introduced, the court instructed the jury to return a verdict for the defendant. A verdict was by the jury returned in accordance with the instructions from the court, and the appropriate judgment rendered. The action of the court in instructing the jury to return a verdict for the defendant is assigned as error; and it is contended that the forfeiture of the policy was an issue of fact, which should have been submitted to the jury for determination. Under this assignment the following propositions are presented and urged by appellants: "(1) It is the province of a jury to decide upon the credibility of witnesses and the weight of conflicting testimony; and, when there is evidence tending to support a cause of action, it is error to withdraw the case from the jury. (2) Whether appellee had exercised its option, and declared a forfeiture within a reasonable time in this case, was a question of fact for the jury."

The correctness of the first proposition is conceded; but its application to this case is dependent upon other propositions. If there was merely a conflict in the evidence upon issues of fact which would have justified a recovery, the settlement of such issues was peculiarly the province of the jury, and the court should not have assumed to itself the exercise of that function. If, however, the...