Travelers' Ins. Co. v. Barker

• Decision Date: 03 April 1935
• Docket Number: No. 1837-6365.,1837-6365.
• Parties: TRAVELERS' INS. CO. v. BARKER.
• Court: Texas Supreme Court

80 S.W.2d 953

TRAVELERS' INS. CO. v. BARKER.

No. 1837-6365.

Commission of Appeals of Texas, Section A.

April 3, 1935.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by S. H. Barker against the Travelers' Insurance Company. Judgment for defendant was reversed, and case remanded by the Court of Civil Appeals [52 S.W.(2d) 285], and defendant brings error.

Writ of error dismissed.

Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, and Bledsoe, Crenshaw & Dupree, of Lubbock, for plaintiff in error.

Levens, McWhorter & Howard, of Lubbock, for defendant in error.

CRITZ, Commissioner.

This suit was instituted in the district court of Lubbock county, Tex., by S. H. Barker against Travelers' Insurance Company to recover $950 alleged to be due to Barker by the insurance company on an accident policy. The case was tried in the district court with a jury, but at the conclusion of the evidence a directed verdict was returned for the insurance company. On appeal by Barker to the Court of Civil Appeals, that court reversed the judgment of the district court and remanded the cause. 52 S.W.(2d) 285. Writ of error was granted on application of the insurance company.

On November 24, 1930, S. H. Barker started to go from Lubbock, Tex., to Bakersfield, Cal. When Barker purchased his ticket at Lubbock, the agent of the railroad company, who was also the agent of the insurance company, sold him an accident policy. The policy was good for two days, and the price charged therefor was 50 cents. The policy was sold to Barker just before he got on the train, and he had no time to read it. When Barker got to Clovis, N. M., on the way to California he was injured by an accident. This accident is the basis of this action. The accident occurred during the life of the policy.

The insurance policy, which was offered in evidence, contained among others the following provisions:

"Age Limits 18 to 70.

"The Travelers Insurance Company, Hartford, Connecticut, In consideration of the premium indicated on the coupon attached hereby insures the person whose name is written upon the stub of this Ticket Policy in the possession of the Company bearing even number and date herewith against bodily injuries effected during the term of this insurance solely by external, violent and accidental means in the manner following, subject to the conditions and limitations herein contained, to-wit: * * *

"The insurance under this policy shall not cover any person under the age of eighteen nor over the age of seventy years. Any premium paid to the company for any period not covered by this policy will be returned upon request."

It was conclusively shown that Barker was over 80 years of age at the time of the issuance of the policy. The insurance company set up that fact as a defense.

The record shows that Barker bought this policy just before he boarded the train at Lubbock. The agent who issued and sold the policy made no inquiry as to Barker's age, and he did not know that it contained the age limit above mentioned. Also Barker had no time or opportunity to read the policy before buying it, or, for that matter, before boarding the train.

We quote the following from the opinion of the Court of Civil Appeals:

"By a supplemental petition Barker alleged that he signed no application for the insurance; that the agent who issued the policy made no inquiry as to his age, and that he made no representations with reference thereto; that the company had accepted the premium of 50 cents and retained it; that he did not know the policy contained a provision with reference to his age, and it was shown that the policy was issued to him only a few minutes before he boarded the train for California, and he had no knowledge of the stipulation referred to. The fact of the issuance of the policy without making inquiry as to the age of the assured and the receipt and retention of the premium were set up as a waiver and as estopping the defendant from relying upon the provision in the policy with reference to the age of the assured.

"When both sides closed in the introduction of testimony, the court directed a verdict for the insurance company. Hence this appeal.

"Barker testified that, when he purchased his ticket at the Santa Fe depot for Bakersfield, Cal., the ticket agent asked him if he wanted an insurance policy. He further testified:

"`I asked him (the agent) what it was and he said that he could issue me a policy that would cover me for two days for 50¢ and that if I got hurt, the Insurance Company would pay me so much a week and if I got killed the Insurance Company would pay $5,000.00. I told him that I would take it and I paid him 50¢ and he folded the policy and put it in the envelope with my ticket. The train was about to leave the station and I rushed to get on the train.'

"He further testified that he did not read the policy, and that the agent who issued it did not ask him how old he was at the time it was issued; that he did not tell the agent his age because he was not asked to do so.

"C. B. Jones, the agent who issued the policy, testified, in part:

"`I was an employee of the Santa Fe Railroad Company as ticket agent and also was agent for the Travelers' Insurance Company in issuing these policies of insurance. Along about Nov. 24, 1930, a gentleman purchased a ticket to Bakersfield, Calif., and at that time I sold him a policy of insurance in the Travelers' Insurance Company. I did not know what his age was at that time. I made no inquiry of him as to his age and he made no statement to me at that time. I knew there were various and sundry other limitations in the policy with reference to...