Mutual Reserve Life Ins. Co. v. Jay

• Decision Date: 08 April 1908
• Court: Texas Court of Appeals
• Parties: MUTUAL RESERVE LIFE INS. CO. v. JAY.<SMALL><SUP>*</SUP></SMALL>

109 S.W. 1116

MUTUAL RESERVE LIFE INS. CO. v. JAY.^*

Court of Civil Appeals of Texas.

April 8, 1908.

Rehearing Denied May 6, 1908.

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

Action by Linnie Jay against the Mutual Reserve Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

West, Chapman & West and Theodore Mack, for appellant. W. A. H. Miller and Hicks & Hicks, for appellee.

NEILL, J.

This is the second appeal from a judgment in favor of Mrs. Jay upon an insurance policy issued by the Mutual Reserve Fund Life Association (to whose rights, liabilities, and obligations the appellant succeeded) to her upon the life of her husband, George W. Jay. The opinion delivered on the first appeal is reported in 101 S. W. 545, which contains a full statement of the nature of the case and the pleadings of the respective parties. As no pleadings have been filed by either of the parties since the date of that opinion, reference is made to it for a statement of the pleadings upon which the case was tried when the judgment now appealed from was rendered. This judgment is upon a verdict in favor of appellee for $2,000, the amount of the policy, with interest thereon, amounting to $418.67, statutory damages in the sum of $240, and $500, attorney's fees, aggregating $3,158.67.

Conclusions of Fact.

As stated in our original opinion, the only issue of fact in the case is whether the statements in the application for the policy by deceased that he was born in "Owensville, Robertson county, Tex., 1st day January, year 1864, and his age at nearest birthday is stated to be 32," were true. There was evidence upon this issue which tends to support the verdict, and, it being an issue of fact for the jury to determine, we find in accordance with the verdict.

Conclusions of Law.

1. The first and second assignments of error are as follows: "(1) The court erred as shown by this defendant's bill of exceptions No. 1; (2) the court erred as shown by this defendant's bill of exceptions No. 2." To make these assignments intelligible the bills of exceptions referred to must be read in connection with them. They are as follows:

"Plaintiff offered in evidence the deposition of Dr. J. M. Williams, whereupon the defendant excepted to that part of the answer of said witness detailing a conversation with the father of George W. Jay, the assured, at the time the said Geo. W. Jay signed the application for the policy of insurance herein sued on, and to the declarations of the father of the said Geo. W. Jay as to the place and date of birth of his son George W. Jay as given by said witness, Dr. J. M. Williams, for the reason that such evidence was hearsay, it appearing from the testimony of the said witness, Dr. J. M. Williams, that at the time the father of Geo. W. Jay made such declarations he (the father) was informed and notified that his son George W. Jay was making an application for a policy of insurance, and that it was necessary to insert in such application the place and date of the birth of said son Geo. W. Jay, and that such statement was important, and therefore the declaration of the father of said George W. Jay, made with such notice and under the circumstances then surrounding them, as to the age and date of the birth of his son George W. Jay, was not the natural and unsolicited effusion of one speaking upon occasion when his mind stood in an even position, without any temptation to exceed or fall short of the truth, and for the reason that such declaration was not made ante litem motam, but at a time as shown by the testimony of said witness when a controversy existed capable of being litigated and of a nature likely to bias the mind of the declarant, the father of said George W. Jay, which objection was overruled by the court and the evidence permitted to go to the jury; to which action of the court in overruling its objection to such testimony defendant in open court excepted, tenders this his bill of exceptions, and prays that the same may be examined, signed, and approved by the court, and ordered filed as a part of the record in this cause.

"After the plaintiff had read to the jury the deposition of Dr. J. M. Williams the defendant moved to strike out and withdraw from the jury all that part of the testimony of said witness which gave the declarations of the father of George W. Jay as to the date and the place of birth of the said George W. Jay, which said date and place was inserted in the application of said George W. Jay for the policy of insurance herein sued on, for the reason that such evidence was hearsay, the said witness, Dr. J. M. Williams, having testified that the father of George W. Jay was notified and informed by the witness at the time he (the father) made such declaration and statement that it was wanted for the purpose of inserting it in an application that his son George W. Jay was at that time making for an insurance policy on his life, such declaration having been made at a time and under such circumstances as did not leave the declarant free from all bias, but being made upon a question which he was then notified and informed might be a subject of controversy, and which is the sole controversy in this suit, the only defense relied and insisted upon in this case being that the declaration made by the father and George W. Jay as to the date and place of birth of his son George W. Jay was and is untrue, which motion of defendant was overruled by the court; to which action of the court in overruling the motion to strike out said testimony defendant in open court excepted, tenders this its bill of exceptions, and prays that the same may be examined, signed, and approved by the court, and ordered filed as a part of the record in this cause."

It will be noted that the testimony objected to and asked to be stricken out is not set out in the bills of exception, but the record must be consulted for its ascertainment. It appears from the record, the death of the father and mother of the insured being conceded, the appellee, for the purpose of proving the date and place of Jay's birth by the declarations of his father, offered in evidence the deposition of Dr. J. M. Williams, the medical examiner of appellant, who, among other things, testified as follows: "The application was made at the drug store of Williams & Landrum, now Gaddis' drug store, in the town of Cotulla. Jordan and George Washington Jay were in my office in the back part of the drug store filling out part 1 of the application, and they came out together and Jordan told me that he wanted me to examine Mr. Jay, but that Mr. Jay did not know when and where he was born. I then told Mr. Jay or advised him that that was very important and told him that he had better get his father to come in. Mr. Jay then went out and brought his father in the drug store, and I asked his father how old his son George Washington Jay was, and Mr. Jordan asked him as to the place his son was born. Mr. Jay told us the age of his son and the place where he was born and when he was born, and Mr. Jordan went up to the counter and filled in the answers to the place and date of birth of the applicant and his age in part 1, where it had been left blank, and then handed the application to me to make the examination. I then asked Mr. Jay's father, who was still present, for the family history of George Washington Jay, in regard to the ages of his brothers, sisters, mother, and father and grandparents, and he gave them to me and I put them down on a piece of paper, as well as the age of George Washington Jay. * * * In writing down the answers to all questions in parts 2 and 3 in the application relating to the age of the applicant and the ages of his father and mother, sisters, and brothers and grandparents, I used the figures and information given me by Mr. Jay's father; Mr. Jay himself stating that he did not know his own age and very little about his family history. I then read the application over to him and he signed it. * * * I was the medical examiner of the Mutual Reserve Fund Life Association in Cotulla, Tex., at that time, and had been for about a year. I gave and wrote the answers as to his age and family history from the information given to me by George Washington Jay's father."

It is conceded by the appellant that declarations made ante litem...