Tex. Mut. Life Ins. Co. v. Davidge

• Decision Date: 01 January 1879
• Citation: 51 Tex. 244
• Parties: TEXAS MUTUAL LIFE INSURANCE CO. v. MARTHA E. DAVIDGE.
• Court: Texas Supreme Court

51 Tex. 244

TEXAS MUTUAL LIFE INSURANCE CO.

v.MARTHA E. DAVIDGE.

Supreme Court of Texas.

1879.

APPEAL from Colorado. Tried below before the Hon. L. Lindsay.

September 4, 1874, Martha E. Davidge brought suit in the District Court of Colorado county, alleging “that on the 9th day of March, A. D. 1874, she obtained a policy of insurance in the Texas Mutual Life Insurance Company, whose principal office is in the city of Galveston, in Galveston county, Texas, upon the life of her husband, William F. Davidge, for the sum of $2,000--gold dollars; that by the said policy of insurance the said Texas Mutual Life Insurance Company covenanted and agreed to pay,” &c.; alleging his death, notice and proof of death, and asking citation to Galveston county, and for judgment, &c.

October 8, 1874, defendant filed general demurrer and general denial.

February 18, 1875, by amendment, defendant, under oath, pleaded want of consideration for the policy; that no premium, nor any part thereof, had been paid; and a special answer, alleging misrepresentations made in the application for the policy of insurance sued on, and an agreement that the policy should not be binding unless the premium was paid during the lifetime and good health of the deceased, William Davidge, and that the premium was not so paid.

The defendant urged against the petition that it did not implead the Texas Mutual Life Insurance Company by its act of incorporation, and did not allege that the company was a corporation, nor set forth that any consideration was paid to support the contract of insurance. The court overruled the demurrer. On the trial, the policy was read in evidence by the plaintiff. The defendant read in evidence the preliminary investigation, and introduced testimony tending to show that the deceased was of intemperate habits.

The defendant offered evidence to show that the first premium on the policy upon the life of William Davidge, of $49, gold, was never paid, but that one William Whitney, the special agent, made an agreement with Davidge to board out the amount of the premium, and that Davidge and Whitney agreed that a board bill due Davidge should be taken, &c.; which testimony was excluded.

Defendant also offered parol evidence that Whitney exceeded his authority as agent in making a contract with Davidge to take board in lieu of the first premium. This the court excluded, and all testimony showing Whitney's acts to be outside his authority, and all testimony impeaching the consideration or showing any state of facts other than the payment of the premium in money, as recited in the policy; holding that the receipt for the premium contained in the policy could not be contradicted.

The court charged the jury as follows:

“If you believe from the evidence that the policy of insurance was delivered by the agent of the Texas Mutual Life Insurance Company to the person assured, or to the beneficiary in the policy in the lifetime of the assured, it is evidence of the payment of the first premium according to the terms of the notification made by the company upon the back of its policy, and the jury must find for the plaintiff the amount of the policy, unless they believe that the assured, William Davidge, in his application for the policy of insurance, was guilty of some false and fraudulent representations to the company, or the suppression of some fact which the company sought to ascertain by medical examination of the assured, in order to obtain the policy.”

The defendant asked the court to instruct the jury “that insurance companies have a right to prescribe any requisites, or ask any question they choose to applicants for insurance; and any misrepresentation, or concealment or suppression of facts, as regards the habits of the applicants, which would have influenced the company in taking the risk, if unknown to the company, will vitiate the policy; and if you believe from the evidence that Davidge was, at the time of applying for the insurance policy, addicted to the excessive or habitual use of intoxicating liquors to such an extent that had the facts of his said use of liquor been known to the company, and the facts concerning such use been truly represented, the company would not have assumed the risk, you will find for the defendant;” which was refused.

Verdict and judgment for the plaintiff. The defendant appealed.

Waul & Walker, for appellant.

I. Although a plea in abatement may be necessary to raise the question of jurisdiction when it is improperly averred, yet a demurrer is the proper method of presenting the objection, when the jurisdiction is not shown by the averments in the petition.

To give jurisdiction to the District Court, it is necessary to show by the petition that the defendant is a resident of the county where the suit is instituted, or that it obtains jurisdiction by reason of the exceptions enumerated in article 1423 of Paschal's Digest, or that the defendant is a corporation and subject to the provisions of law as enacted by the Legislature and approved March 21, 1874. (Paschal's Dig., art. 1423; Stats. 1874, pp. 31, 32; Ward v. Lathrop, 4 Tex., 180;Briggs v. McCullough, 36 Cal., 542; Sayles' Plead., sec. 89.)

II. A promise without consideration, averred in the petition, is a mere nudum pactum, and no recovery can be had thereon. (Jones v. Holliday, 11 Tex., 414;Holman v. Criswell, 13 Tex., 38;Hall v. York, 22 Tex., 641;Hardison v. Hooker, 25 Tex., 91; Sayles' Plead., 58-60; 1 Chitty on Plead., 321.)

III. The court erred in ruling that parol testimony was inadmissible to show the circumstances under which the policy was delivered, and that all evidence impeaching the consideration for the policy was inadmissible.

IV. Delivery of the policy of insurance may be presumptive evidence of the payment of the first premium according to the conditions on the back of the policy, but, like all other receipts, is subject to explanations to rebut the presumption.

In the application for insurance, it was agreed by the applicant that “the policy of insurance hereby applied for shall not be binding upon this company until the first premium, as stated therein, shall have been received by said company, or some authorized agent thereof, during the lifetime and good health of the person therein insured.”

Upon the back of the policy is this indorsement: “Notice to the assured: payment of premiums.--This policy, when signed by two officers of the company, acknowledges and is a valid receipt for the first payment thereon.”

Defendant offered to show in evidence that the first premium on the policy of insurance upon the life of William F. Davidge, of $49.56, gold, was never paid; but that William Whitney, the special agent, agreed to board out the amount of the premium, and propounded the question to plaintiff on cross-examination, “Did Mr. Davidge agree to take the amount due by board bill of Mr. and Mrs. Whitney as an equivalent for the payment of the first premium upon the life policy?”

Defendant also offered to prove the admissions of plaintiff, that she refused to accept payment for the board of Whitney, the agent. (McGehee v. Shafer, 15 Tex., 198; 1 Greenl. Ev., secs. 284, 305; Bliss on Life Ins., sec. 376.)

V. An...