Seiders v. Merchants' Life Ass'n.

• Decision Date: 11 January 1900
• Citation: 54 S.W. 753
• Parties: SEIDERS v. MERCHANTS' LIFE ASS'N OF THE UNITED STATES.
• Court: Texas Supreme Court

54 S.W. 753

SEIDERS v. MERCHANTS' LIFE ASS'N OF THE UNITED STATES.

Supreme Court of Texas.

January 11, 1900.

Error to court of civil appeals of Third supreme judicial district.

Action by Mary Seiders against the Merchants' Life Association of the United States. From a judgment of the court of civil appeals (51 S. W. 547) affirming a judgment for defendant, plaintiff brings error. Reversed.

Z. T. Fulmore, for plaintiff in error. Fiset & Miller, for defendant in error.

BROWN, J.

The plaintiff sued the defendant upon a policy of life insurance upon the life of her husband, P. W. Seiders, for the sum of $3,000. The defendant pleaded, among other things, that the deceased, in his application for insurance, represented and warranted that he had never made application for insurance to any other company which had been rejected, and that the said representations were false in fact. The plaintiff replied, setting up the law of the state of Missouri, hereafter copied in the statement of the case. The trial was had before the district judge, who filed conclusions of fact, of which we make the following condensed statement: The defendant was incorporated under the laws of the state of Missouri, and has its principal office in the city of St. Louis, in that state. On the 28th day of September, 1897, it was doing business in the county of Travis, and state of Texas, through its resident agent, W. A. Elder, who was authorized agent and district manager for the corporation. On that day, P. W. Seiders, who was the husband of the plaintiff, and resided in Travis county, made application to the company, through Elder, its agent, for a policy of insurance on his life in the sum of $3,000. Seiders was examined by the defendant's medical examiner. The application was signed by Seiders, and delivered to Elder, in Travis county, to be forwarded to the defendant's home office, in St. Louis. The application contained the following questions and answers: "(16) Did any life insurance organization ever reject your application? Ans. Yes. Postpone? Ans. No. Change plan? Ans. No. Or reduce amount applied for? Ans. No. If so, give name of each, and when. Ans. Provident, $1,000, July, 1897." "(19) Was any policy ever issued upon your life which was afterwards canceled by company or association which issued it? Ans. No." "(45) Do you use ardent spirits, wine, or malt liquor? Ans. Yes. (46) If so, what kind, and largest quantity in any day? Ans. One glass beer, and not regularly. Sometimes two months without any." The application also contained a clause by which the insured agreed that, if he had made any false or fraudulent statements in his application, or should use alcoholic or malt liquors in excess of the "present use," as stated, the association should be released from the insurance, and liable only to an amount equal to the actual reserve on the said policy. Upon the receipt of the application at the home office in St. Louis, the defendant, on the 2d of October, 1897, duly executed under its seal a policy, which contained these provisions: "The Merchants' Life Association of the United States, * * * in consideration of the first annual premium of $64.05, the written and printed application for this policy, and the payment of all premiums as stated in the insurance plan indorsed hereon, which application and plan are hereby made a part of this contract, does promise to pay to Mary Seiders, wife of the insured, at the office of the association in the city of St. Louis, state of Missouri, $3,000, within thirty days after receipt and approval by it of satisfactory proofs of the death of Pinkney W. Seiders, Austin, Texas." The policy, being executed by the defendant company, was mailed by it in St. Louis to W. A. Elder, its agent in Austin, Tex., and by him delivered to Pinkney W. Seiders, in Travis county, Tex., October 4, 1897, when Seiders paid Elder $16.02 in cash and executed three promissory notes, each dated "St. Louis, Mo., Oct. 1, 1897," for the sum of $16.01 each, payable to defendant company, or order, at its home office, in St. Louis, in three, six, and nine months, respectively, from date. The cash payment and the notes constituted the first annual premium, amounting to $64.05. The cash and the notes were forwarded by Elder to the defendant at its home office. The first and second of the notes were paid by Seiders to Elder in Travis county, Tex., as they fell due. Pinkney W. Seiders died April 11, 1898, and proofs of his death were duly forwarded to the defendant on May 1, 1898, and payment of the policy demanded, which was refused, and suit brought. Before signing the application for this policy, Seiders had applied to the New York Life Insurance Company for a policy of insurance, and also to the Provident Life Insurance Company, and in each case his application had been rejected. His answers to the questions upon this point were untrue. Before signing the application, Seiders had procured a policy from the Mutual Life Insurance Company of New York, which was afterwards canceled. After the execution and delivery of the said policy sued upon, Seiders did use alcoholic and malt liquors in excess of the amount stated in his application.

The following is an extract of the statute of the state of Missouri in force when this contract was executed and at the time of the death of Seiders: "No defense based upon misrepresentations made in obtaining or securing a policy of insurance on the life or lives of any person or persons shall be deemed material or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due or payable, and whether it so contributed in any case shall be a question for the jury." Rev. St. § 5849. None of the facts misrepresented in the application contributed to the death of Pinkney W. Seiders. The trial court found that $300 was a reasonable fee for the services of plaintiff's attorney in bringing this suit; that the annual premium amounted to $64.05, of which sum $48.04 and $1 interest has been paid in cash, and a note for $16.01, which cash payment and note were tendered into court by the...