National Life Ins. Co. v. Reppond

• Decision Date: 04 June 1904
• Parties: NATIONAL LIFE INS. CO. OF UNITED STATES OF AMERICA v. REPPOND.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 1012

NATIONAL LIFE INS. CO. OF UNITED STATES OF AMERICA v. REPPOND.^*

Court of Civil Appeals of Texas.

June 4, 1904.

Appeal from District Court, Navarro County; L. B. Cobb, Judge.

Action by Annie Reppond, as temporary administratrix of John T. Reppond, deceased, against the National Life Insurance Company of the United States of America. From a judgment for plaintiff, defendant appeals. Reversed.

Maurice E. Locke, for appellant. W. J. Weaver H. L. Stone, McClellan & Prince, and Callicutt & Call, for appellee.

RAINEY, C. J.

We take from appellant's brief the following statement of the nature and result of the suit, to wit: "This action was brought by Annie Reppond, as temporary administratrix of her deceased husband, John T. Reppond, to recover upon a policy of insurance in the sum of $5,000 issued upon his life by National Life Insurance Company of the United States of America. The defendant pleaded that several statements contained in the application for the policy, and warranted to be true, were in fact untrue; that the policy had lapsed before the death of Reppond, by reason of his failure to pay two premium notes when due; and that his death was caused by his own violation of law. Besides a denial of the defendant's allegations, the plaintiff replied that the defendant had waived any forfeiture of the policy consequent upon the nonpayment of the notes. The court found as established by the undisputed evidence the facts pertinent to the nonpayment of the notes, and submitted the other matters upon special issues. The jury found in favor of the plaintiff as to all the issues except one. The defendant requested a peremptory instruction in its favor, based upon one of the breaches of warranty and the nonpayment of the notes, and moved for a new trial because such instruction was refused. It also moved for a judgment in its favor upon the verdicts and the undisputed evidence relating to the same two issues. The court overruled both motions and entered a judgment for the plaintiff."

Two propositions are urged by the company for a reversal of the judgment:

1. That the undisputed evidence shows a breach of the warranty in the application, wherein Reppond made false answers to a material question by the medical examiner. The evidence pertinent to this issue is as follows: "The first sentence of the policy sued on reads as follows: `National Life Insurance Company of the United States of America, Washington, D. C., in consideration of the statements, agreements and warranties in the application herefor (copy of which is hereto attached), which is hereby made a part of this contract, * * * hereby promises to pay Five Thousand Dollars.' Part 1 of the application made by John T. Reppond for the policy sued upon consists of answers to questions, agreements, and the following warranty: `The statements and agreements made by me in this application, as well as those I have made, or shall make, to the Company's medical examiner, are hereby warranted by me to be full, complete and true, and without suppression of any fact or circumstance which would tend to influence the company in issuing a policy under this application, and shall be taken as the basis of, and as a consideration of, the contract.' Part 1 was signed by Reppond. Part 2 of the application consists of answers made by John T. Reppond to the defendant's medical examiner, followed by this warranty and the signature of Reppond: `I warrant, on behalf of myself and of any person who shall have or claim any interest in any policy issued hereunder, that I have carefully reviewed all answers made to the medical examiner in the foregoing examination, which answers have been written by said medical examiner at my request; and that said answers, and each of them, as hereinabove written, are as answered by me; and that each of the above answers are full, complete and true. A copy of parts 1 and 2 of the application was attached to the policy. Part 2 of the application contains the following question and answer: (Que...