Reppond v. National Life Ins. Co.

• Decision Date: 24 April 1907
• Citation: 101 S.W. 786
• Parties: REPPOND v. NATIONAL LIFE INS. CO. OF AMERICA.
• Court: Texas Supreme Court

101 S.W. 786

REPPOND v. NATIONAL LIFE INS. CO. OF AMERICA.

Supreme Court of Texas.

April 24, 1907.

Error to Court of Civil Appeals, Fifth Supreme Judicial District.

Action by Annie Reppond against the National Life Insurance Company. Defendant appealed to the Court of Civil Appeals from a judgment for plaintiff, and, it having been reversed and judgment rendered for defendant (96 S. W. 778), plaintiff brings error. Reversed and remanded.

H. L. Stone, W. J. Weaver, McClellan & Prince, and Callicutt & Call, for plaintiff in error. Locke & Locke, for defendant in error.

BROWN, J.

Annie Reppond sued the insurance company upon a policy issued upon the life of her husband, John T. Reppond, dated the 10th day of July, 1902, by which the company promised to pay $5,000 to Annie Reppond within 60 days after receipt of notice and proof of the death of the assured. The policy contained a stipulation that a failure to pay a premium or any part thereof, or any note given for a premium or any part thereof, should cancel the policy. The application was made by John T. Reppond through T. P. Adams, the agent of the insurance company, and the application contained this stipulation: "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 the basis of, and as a consideration of, the contract." The following questions were propounded to Reppond, and the answers were given by him: The medical examiner asked Reppond whether he had at that time, or had ever had, certain diseases named in the application, to which he was required to answer "Yes" or "No." Reppond answered that he had had smallpox or varioloid, and answered also that he had not had typhoid fever, but had had malarial fever. He was asked to give the name and address of each physician who had prescribed for him within the past five years, and the dates and causes of consultation, to which he answered: "Dr. McElroy, Riley Springs, Tex." Upon the application was the following: "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." The record of health which was referred to in the medical examiner's report showed as follows: "Appended to this special report was a certificate signed by Dr. Goldstein, in which, among other things, he certified that the questions in part 2 of the application were read by him to Reppond, and separately answered by Reppond, that the answers given to the questions were the identical answers given by Reppond and reviewed by him in the presence of Dr. Goldstein, and that the answers in part 2, as well as the statements made in the special report, were true, to the best of the knowledge and belief of said Dr. Goldstein." The undisputed evidence showed that Dr. Miller attended Reppond from October 22 to November 11, 1899, and prescribed for him frequently during the time. Reppond's father lived at Riley Springs. Dr. McElroy was the family physician and lived at the Springs. After Reppond recovered from the fever, he visited his father, but there is no evidence whether McElroy did or did not prescribe for him on that visit. In settlement of the premium, Adams, the agent, took an order from Reppond on his employer for $100, which he collected, and took two notes for $100 each payable to Adams, who testified that he took the notes for the company, but a witness named Frasier, who claimed to have been present at the time of the transaction, testified that Reppond paid Adams $30 or $40 in cash, and Adams told Reppond if he would pay money enough to settle with the company he (Adams) would take notes for his part. Under his contract with the insurance company Adams was entitled to 70 per cent. of the premium. Adams paid no part of the money that was received by him to the company, but some months after the transaction he sent to the company the notes, with the statement that he had had to take notes in settlement of the premium. The company did not know of the agreement between Adams and Reppond. Dr. Miller testified that he treated Reppond as stated above, and that his disease was typhoid fever, but there was evidence before the jury upon which they could find, and they did find, that Reppond did not have typhoid fever. When the first note given by Reppond fell due, he refused to pay it, and stated that he would have no more to do with the matter. The company sued him upon the note and obtained judgment therefor. When the second note fell due, the insurance company did not make any demand upon Reppond for its payment, and nothing was ever done about it. Neither note was paid. The trial court entered judgment for Mrs. Reppond for the amount of the policy and interest with attorney's fees and damages under the statute, which judgment the Court of Civil Appeals reversed, and rendered judgment in favor of the insurance company.

Counsel for the insurance company insist that the questions involved in this case were decided by this court adversely to the plaintiff in error in refusing a writ of error in the case of ...