Mutual Life Ins. Co. v. Hargus

• Decision Date: 09 January 1907
• Citation: 99 S.W. 580
• Parties: MUTUAL LIFE INS. CO. et al. v. HARGUS.
• Court: Texas Court of Appeals

99 S.W. 580

MUTUAL LIFE INS. CO. et al. v. HARGUS.

Court of Civil Appeals of Texas.

January 9, 1907.

On Rehearing, February 6, 1907.

Appeal from District Court, La Salle County; J. F. Mullally, Judge.

Action by W. L. Hargus against the Mutual Life Insurance Company and others. From a judgment for plaintiff, defendants appeal. Affirmed in part, and reversed and rendered in part.

Jas. D. Crenshaw, for appellants. Hicks & Hicks, for appellee.

NEILL, J.

This suit was brought by the appellee against the appellants to cancel a note upon grounds stated in our conclusions of fact, and to recover exemplary damages. The trial resulted in a judgment canceling the note, and for damages in the sum of $350.

Conclusions of Fact.

Appellant Mutual Life Insurance Company is, and was on July 27, 1905, a foreign corporation with a permit to do business in this state; and appellants Chamberlain & Gillette are, and were then, its general agents in the state of Texas, empowered to write life insurance policies for the company, and to appoint agents to solicit and contract for such insurance. And on and prior to said date C. F. Ellis was their agent for that purpose. On that day the said Ellis, as such agent, agreed for and in behalf of the appellants with the appellee, W. L. Hargus, to issue him an insurance policy of $10,000 on his life, in consideration of the payment of 15 annual premiums of $378.70 each, which should be full paid up at the expiration of 15 years from its date. When such agreement was reached a formal application was made in writing to the company by the appellee for a policy, which he was induced by the representations of said agent to believe was such as had been agreed upon between them, but which, in fact, was for one requiring the payment of annual premiums of $378.70 as long as he should live. This application was signed by him and his note for $378.70, for the first annual premium made to Chamberlain & Gillette, under the belief, so induced by Ellis, that such application was made and note executed for a policy which would be fully paid up at the expiration of 15 years from said date, and in ignorance of the fact that the application showed upon its face to be for a policy that required annual payment of premiums as long as he lived. On July 27, 1905, the insurance company issued a policy on appellee's life for $10,000, which required payment of annual premiums of $378.70 as long as he lived. Within a reasonable time after receipt of the policy, appellee returned it to appellants, informing them that it was not such as he contracted for, and demanded that they return him his note. This demand was refused, and the policy returned appellee, with the statement that he would be held liable by Chamberlain & Gillette on his note for the first annual premium, they having paid it themselves to the company. The appellee then filed suit for the cancellation of the note, alleging substantially the above facts, and at the same time brought the policy into court and asked that it be likewise canceled. There are no facts upon which the judgment for damages in favor of appellee can be predicated. This will be clearly shown in connection with our conclusion of law upon the assignment of error which complains of that part of the judgment.

Conclusions of Law.

1. The appellee's petition was good as against a general demurrer. One applying for life insurance, who does not know the truth of matters concerning which an insurance agent makes false representations, and relies on such representations, though he could have informed himself of the truth by means of information at hand, is not estopped from complaining of their falsity, unless inexcusably negligent in not informing himself. Equitable Life Assur. Co. v. Maverick (Tex. Civ. App.) 78 S. W. 560. The question as to whether he was inexcusably negligent is one of fact, and, though a petition may not specifically aver the absence of such negligence, such averment, if essential, will, as against a general demurrer, he supplied by intendment, under the rule that every reasonable intendment from the allegations contained in a pleading taken as a whole will be indulged in its favor when attacked by general demurrer. Insurance Co. v. Woodward (Tex. Civ. App.) 45 S. W. 185; Whaley v. Thomason (Tex. Civ. App.) 93 S. W. 212; International Harvester Co. v. Campbell (Tex. Civ. App.) 96 S. W. 95.

2. The pendency of a suit, brought by Chamberlain & Gillette against the appellee on the note sought to be canceled by this action in the district court of Bexar county, was no ground for abating this one. Towns on Pleading, 453. Therefore, the court did not err in overruling appellants' plea in abatement.

3. The third assignment of error complains that the court erred in permitting appellee to testify over appellants' objection as to the agreement he had with their agent before signing the application for the policy, the objection being that such oral agreement was merged in the writing and parol evidence was not admissible to vary, modify, change, or alter the contract. The objection is predicated upon the erroneous assumption that the written application for the policy was the contract of insurance, while it was merely a step intended to be taken in the direction of the contemplated contract. If appellee contemplated and understood that he was to have from the appellant company a contract insuring his life for $10,000, in consideration of his paying for such insurance $378.70 annually for 15 years, and the agent of the company, either through ignorance of the character of the application which he presented appellee to sign in order to procure such contract of insurance, or by fraudulent representations, induced him to believe that the application was for a policy expressive of the contract contemplated, there was no meeting of the minds of the parties as to the kind of policy which should be issued, and consequently no agreement or contract between the parties. This could be shown, and was the very object of the suit and purpose of the testimony objected to.

4. The court did not err in refusing to charge the jury at appellants' request that, if plaintiff had an opportunity to read the application...