Security Mut. Life Ins. Co. v. Calvert

• Decision Date: 10 May 1905
• Citation: 87 S.W. 889
• Parties: SECURITY MUT. LIFE INS. CO. v. CALVERT.
• Court: Texas Court of Appeals

87 S.W. 889

SECURITY MUT. LIFE INS. CO. v. CALVERT.

Court of Civil Appeals of Texas.

May 10, 1905.

Appeal from District Court, Hunt County; T. D. Montrose, Judge.

Action by Jeff B. Calvert against the Security Mutual Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Coke & Coke, for appellant. Looney & Clark and B. M. McMahan, for appellee.

FISHER, C. J.

This is a suit by Calvert against the insurance company on a policy issued on the life of his wife, in which the appellee was named as beneficiary. Verdict and judgment were in appellee's favor.

The court, among other things, instructed the jury as follows:

"Second. Unless you find for the defendant under the instructions hereinafter given you, you are instructed to find for the plaintiff in the sum of $1,211.60, the same being the amount of the policy, together with 6% interest thereon from the date suit was filed, and 12% damages on the face of the policy, and, in addition thereto, such reasonable amount as attorney's fees as you may find from the evidence he is entitled to recover for the prosecution of this suit.

"Third. You are charged that, in the application made by Mrs. Sallie Calvert for the policy sued on, she stated that Dr. T. J. Milner, of Greenville, Texas, was then her family physician; that it had been ten years since she had been last attended by a physician or consulted one; that she had never been afflicted with malaria, and had never been afflicted with disorder of the liver; that her menstruation was regular and healthy, and that it had always been so; that she had no knowledge of any disease, organic or functional, of any of her reproductive organs; that she had never had any injury, disease, or disorder other than as stated in the several parts of the said application. You are further charged that in said application the said deceased, Sallie Calvert, agreed that the policy applied for should not be in force unless actually delivered to her and accepted by her in her lifetime, and while she was in good health, and unless the first premium due thereon should be actually received by the company.

"Fourth. Therefore, if you find from the evidence that the statements, or either of them, set out in paragraph 3 of this charge, were in any respect untrue, or if you should find from the evidence that said policy was not delivered to and accepted by Mrs. Sallie Calvert, and the premium paid thereon, while she was in good health, then, in either event, you will find for defendant, unless you should find for plaintiff under the instructions hereinafter given you."

The facts submitted in the third subdivision of the charge, as quoted, were pleaded by the appellant as breaches of a warranty contained in the application for insurance, which is made a part of the policy. The facts stated by Mrs. Calvert were warranted to be true.

The appellant requested of the court the following charge, which was refused:

"You are instructed: That the evidence shows beyond question (1) that Mrs. Calvert was not in good health when the policy sued on was delivered to J. B. Calvert; (2) that her statement that T. J. Milner was her family physician was untrue; (3) that her statement that it had been ten years since she was last attended by a physician or consulted one, and that she then consulted Dr. O. Smith for malarial fever, was untrue; (4) that her statement that her menstruation was regular and healthy, and had always been so, was untrue. That any one of these matters rendered the policy unenforceable, and, unless you believe from the evidence that the defendant had waived each and every one of them, then you should find for the defendant."

As above said, the application made by Mrs. Calvert for the policy was, by the terms of the policy, referred to and made a part thereof; and...