Mutual Life Ins. Co. v. Ford

• Decision Date: 01 June 1910
• Citation: 130 S.W. 769
• Parties: MUTUAL LIFE INS. CO. v. FORD.
• Court: Texas Court of Appeals

Page 769

130 S.W. 769

MUTUAL LIFE INS. CO. v. FORD.

Court of Civil Appeals of Texas.

June 1, 1910.

Rehearing Denied June 30, 1910.

Error from District Court, Hays County; L. W. Moore, Judge.

Action by Mary C. Ford against the Mutual Life Insurance Company. There was a judgment for plaintiff, and defendant brings error. Modified and affirmed.

Jas. D. Crenshaw, for plaintiff in error. Will G. Barber, for defendant in error.

PATTERSON, C. J.

This is a suit by defendant in error against plaintiff in error on a life insurance policy issued October 15, 1906, to Owen Ford, who died from a pistol wound on December 7, 1906. Two special defenses are set up against recovery:

First. That the insured died by the act of his own hand, in violation of the warranty in his application for the insurance that "I will not die by my own act, whether sane or insane, during the period of one year next following the date of issue of said policy."

Second. That the insured further stated in his application, "I am insured in other companies and associations, as follows: $5,000 Equitable of New York and in no others," and warranted this statement to be true, when in fact it was not true, he having at that time the following certificates in fraternal assessment orders and local societies: Order of Pendo, $1,225; Loyal Americans, $2,000; Friends in Need, $449, and Home Benefit Society of San Marcos, $254. Also that he, in addition to the fraternal and local society insurance, had an accident policy in the United States Casualty Company for $5,000. The case was tried before the court without a jury, and judgment rendered for defendant in error for the face of the policy, $2,000, with 6 per cent. interest thereon from January 31, 1907, $240 as statutory damages, and $500 attorney's fees. The case is before this court on the record, without findings of law and fact by the trial court.

1. The first four assignments of error are grouped together, and the group followed by one proposition and the proposition by one statement in the brief for plaintiff in error, and defendant in error objects to our considering these assignments as in violation of rule 30 (47 Pac. v) for the Courts of Civil Appeals. The assignments complain of the trial court overruling four special exceptions to plaintiff's first amended supplemental petition. It is permissible to group assignments which relate to the same subject, although not commendable; but, when they are such as to permit grouping, each should be supported by its own proposition. Neal v. Galveston, H. & S. A. Ry. Co., 37 Tex. Civ. App. 235, 83 S. W. 402. If there was error in overruling the special exceptions, it is harmless, as the trial was before the court, and the record does not show any testimony in support of the parts of the supplemental petition excepted to, and it is stated in the brief for defendant in error that the court refused to admit and hear evidence in support of the same. Houston & T. C. R. Co. v. O'Donnell, 90 S. W. 886; Turner v. Faubion, 36 Tex. Civ. App. 314, 81 S. W. 810; Alexander v. McGaffey, 39 Tex. Civ. App. 8, 88 S. W. 462; International & G. N. R. Co. v. Glover, 88 S. W. 515; Jackson v. Poteet, 89 S. W. 980,

2. The fifth assignment of error is that the court erred in overruling defendant's special exception to the fifth paragraph of plaintiff's first amended supplemental petition, wherein it is alleged, in substance, that defendant did not give notice to the insured during his life, nor within any reasonable time after his death to the beneficiary, that it repudiated the contract of insurance, and denied liability upon the ground of misrepresentations. The exception is that the matters alleged in said fifth paragraph "are no defense to any of the facts set up by the defendant, as plaintiff alleges that she received a letter from defendant (which letter she is hereby notified to produce upon the trial of this case or secondary evidence of its contents will be introduced) in which this defendant denied liability on said policy in toto, and refused the payment thereof." An examination of the record shows that plaintiff only alleged in her first amended original petition "that defendant by its written communication of January 31, 1907, declined and refused to pay said sum of $2,000 or any part thereof," but it is not alleged upon what ground defendant based its refusal to pay. We do not think it necessary to a proper decision of the case to pass upon the question whether the defendant was required to give notice to either the insured during his life or to his beneficiary after his death that it repudiated the contract for misrepresentations, and we would not feel warranted in reversing the case if we found it necessary to pass upon this question, as the case was tried by the court without a jury, and no findings of law and fact are in the record, it being the duty of this court in the absence of findings of law and fact by the trial court not to disturb the judgment if it can be based upon other pleadings and evidence in support of the same. Barton v. American National Bank, 8 Tex. Civ. App. 224, 29 S. W. 210. If it was error to overrule the exception, it is abstract and harmless under the record before us. Gulf, C. & S. F. Ry. Co. v. John, 9 Tex. Civ. App. 342, 29 S. W. 558.

3. The seventh assignment of error is that the court erred in rendering judgment for the defendant in error, as the uncontradicted evidence shows that the insured did not disclose in his application the full amount of insurance on his life at the time he applied for the policy here involved. The application was the printed form used by the company and furnished to its agents, and contained 20 printed questions and statements. Two of these question statements, the eighteenth and nineteenth and the answers thereto, are set out in the statement of facts, as follows: "(18) I have been accepted for insurance under the following policies in this company: $1,000 Ten Pay. Income Policy. (19) I am insured in other companies and associations, as follows: $5,000 Equitable of New York and in no others." To the colon is the printed language of the company, and after it the applicant's statement written down by the agent of the company, who testified that the meaning of the nineteenth statement was that the applicant was "not insured in any other insurance company." The application is expressly made a part of the contract, and all statements and answers in it by the insured, as well as those made by him to the medical examiner, whether material or not, are made warranties. While the rules for the construction of insurance contracts are simple and well settled, their application to the question here involved is not altogether satisfactory, and the question itself does not seem to have been the subject of but very few decisions. The courts of almost every state have determined whether or not fraternal insurance orders and accident insurance companies are within the meaning of their respective statutes, and the cases are almost equally divided. They aid very little in solving the question whether fraternal and accident insurance are within the meaning of a statement like the one before us, as the decision in each instance depends almost entirely upon the wording of the statute and the legislative intent, and not upon what is commonly understood by the term "insurance." We think the question should be determined from the decisions that are free of statutory construction and by the rules applicable to insurance contracts. From these decisions we find the rule to be that, if there is no room for the insured as a fair and intelligent person not to conclude from the question that fraternal and accident insurance were not intended to be included in his answer, then his failure to give the same vitiates the contract. On the other hand, if he could reasonably conclude that such insurance, was not intended, then its omission does not render the contract void.

In Newton v. Southwestern Mutual Life Association, 116 Iowa, 311, 90 N. W. 73, the question asked in the application was: "Has any company ever declined to grant insurance on your life?" The answer was, "No." The court says: "The only evidence that this answer was false consisted in the answer by the assured to a similar question in an application for membership in the Sovereign Camp of the Woodmen of the World. The question was: `Have you ever been rejected for life insurance? If so, state when, name the company or order.' The answer was: `Yes; Modern Woodmen of America, one year ago.' It seems to be conceded that, if this answer was correct, then it sufficiently appears that prior to the answer made in the application to the defendant association the insured had been rejected on an application for membership in an insurance association known as the Modern Woodmen of America. It is to be noticed, however, that the inquiry in the application to defendant was as to `any company,' while the inquiry in the other case was whether the applicant had `ever been rejected for life insurance,' and the inquiry further specifies in `any company or order.' Now, it may be that the insured did not regard the inquiry with reference to `any company' as applying to insurance in a fraternal order. The insured himself seems to have made this distinction, and we are of the opinion that he was justified in doing so. When an insurance company or association seeks to avoid a policy or certificate of membership on the ground of falsity of answer to a question which is by the terms of the contract made material, the court will construe the question and answer strictly as against the company and liberally with reference to the insured. Stewart v. Association, 110 Iowa, 529, 81 N. W. 182. If any construction can reasonably be put on the question and the answer such as will avoid a forfeiture of the policy on the ground of falsity of the answer, that construction will be given, and the...