Northwestern Mut. Life Ins. Co. v. Freeman

• Decision Date: 02 November 1898
• Citation: 47 S.W. 1025
• Court: Texas Court of Appeals
• Parties: NORTHWESTERN MUT. LIFE INS. CO. v. FREEMAN.<SMALL><SUP>1</SUP></SMALL>

47 S.W. 1025

NORTHWESTERN MUT. LIFE INS. CO. v. FREEMAN.¹

Court of Civil Appeals of Texas.

November 2, 1898.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Maymie C. Freeman against the Northwestern Mutual Life Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Houston Bros., for appellant. Lewy & Sehorn, for appellee.

NEILL, J.

This suit was brought by the appellee, Maymie C. Freeman, against the appellant, the Northwestern Mutual Life Insurance Company, on March 25, 1896, upon the policy of insurance described in our conclusions of fact. The substance of the policy was pleaded in appellee's petition, and such facts were averred as, if true, would show the liability of appellant. The appellant answered by general and special exceptions, a general denial, and by pleading specially that when killed the assured was engaged as a brakeman on a railroad train, and therefore by the terms of the policy it was not liable thereon. The appellee, by supplemental petition in replication to appellant's special plea, pleaded that the company was estopped from making such defense, upon the ground that its general agents, Peacock & Smith, had, with full knowledge of the fact that the assured had changed his occupation, and was engaged in the employment of a brakeman on a railroad train, received for appellant payment of the quarterly premiums falling due on October 9, 1894, and January 9, 1895. All of the exceptions of appellant to appellee's petition were overruled, except one. The case was tried before a jury, the principal issue being as to whether Peacock & Smith, as agents of the company, knew when they received payment of either of the premiums falling due on October 9, 1894, and January 9, 1895, that the assured was employed as a brakeman on a railway train; and the trial resulted in a verdict upon which judgment was entered against appellant.

Conclusions of Fact.

On the 9th day of April, 1894, appellee issued its policy to Robert Randolph Freeman, in consideration of $10.67, payable quarterly on the 9th days of April, July, October, and January, and every year thereafter during the first 20 years of the continuation of said policy, and obligated and bound itself to pay to appellee, Maymie C. Freeman, the wife of the assured, the sum of $1,500, in 60 days after due proof of the fact and cause of the death of Robert R. Freeman. The policy provides that if the assured shall be personally engaged as an engineer or fireman of any locomotive engine, in switching or in coupling or uncoupling cars, or be employed in any capacity on any trains or railroad, except as a passenger or sleeping-car conductor, mail agent, express messenger, or baggage master, it shall be null and void. Attached to the policy was the original application for the insurance, made and signed by the assured, Robert Randolph Freeman, in which the tenth paragraph is as follows: "Do you understand and agree that no statements, representations, or information made or given by or to the person soliciting or taking this application for a policy, or to any other person, shall be binding on the company, or in any manner affect its rights, unless such statements, representations, or information be reduced to writing, and presented to and approved by the officers of the company at the home office? Yes." At the time the policy was issued, the assured kept a livery stable in Austin, Tex., but afterwards abandoned such vocation, and on or about the 25th day of October, 1894, applied for the position of, and became, a brakeman on the Galveston, Harrisburg & San Antonio Railway Company, and on the 7th day of April, 1895, while performing his duties as a brakeman on one of the company's trains, was killed. All the premiums due on the policy at the time of his death had been paid; the quarterly premiums due on October 9, 1894, and January 9, 1895, having ben paid for the assured by his brother, J. H. Freeman, to Peacock & Smith, general agents of appellant company, to whom renewal receipts had been forwarded by the company for collection. The assured never gave appellant or its general agents, Peacock & Smith, notice of the fact that he had changed his occupation from livery stable keeper to that of a railroad brakeman. But Messrs. Peacock & Smith, as general agents of the company, knew of such change in his vocation; and as general agents of appellant company, with knowledge of such change, accepted and remitted to the home office of the company the quarterly premium paid on January 9, 1895. The policy of insurance was effected through the agency and solicitation of Peacock & Smith, but they had no express authority to issue policies of insurance, or to pass upon applications for policies, or to waive any conditions of policies or of applications for policies. After the death of the assured, his brother, J. H. Freeman, applied to Messrs. Peacock & Smith, as agents of appellant, for blanks on which to make out proof of death, and such...