Travelers Ins. Co. v. Barker
| Decision Date | 15 June 1936 |
| Docket Number | No. 4617.,4617. |
| Citation | 96 S.W.2d 559 |
| Parties | TRAVELERS INS. CO. v. BARKER. |
| Court | Texas Court of Appeals |
Appeal from Lubbock County Court; E. L. Pitts, Judge.
Action by S. H. Barker against the Travelers Insurance Company. From an adverse judgment, the defendant appeals.
Reversed and remanded.
Bledsoe, Crenshaw & Dupree, of Lubbock, and Thompson, Knight, Baker & Harris, of Dallas, for appellant.
McWhorter & Howard, of Lubbock, for appellee.
This action was instituted July 7, 1931, by Barker against the insurance company to recover upon an accident policy which had been issued to plaintiff by the defendant. The case was tried at a former term of the court, and the trial judge instructed a verdict for the company, from which Barker appealed. The judgment was reversed, and the case is reported in (Tex. Civ.App.) 52 S.W.(2d) 285. The Supreme Court dismissed the writ of error for want of jurisdiction, as reported in 80 S.W.(2d) 953.
Plaintiff's petition has not been amended, and he alleges in substance that on November 24, 1930, for a consideration of 50 cents paid, he purchased and procured an accident policy, insuring him for a period of forty-eight hours for losses resulting from bodily injuries sustained solely by external, violent, and accidental means in the manner provided in said policy, and subject to the conditions and limitations therein contained; that the policy provided for a weekly indemnity of $25 for not exceeding fifty-two consecutive weeks, provided the insured should be continuously and wholly disabled during said period by injuries sustained "independently of all other causes from performing every duty pertaining to his or her business or occupation." He then alleged that he suffered bodily injuries effective during the term of said insurance by accidental and violent means on the 24th day of November, 1930, within the terms and limitations of said contract of insurance, and plaintiff gave due notice and proof of said injuries within the time provided in said policy of insurance. He prayed for judgment for $950, interest and costs.
The policy contained this limitation:
The defendant answered by general demurrer and general denial, and specially pleaded the provision of the policy just quoted. It was alleged that plaintiff was over seventy years of age, and was not entitled to recover under the contract, and tender of the premium paid was made to plaintiff in accordance with the provisions of the contract.
By supplemental petition, plaintiff pleaded that in issuing the policy sued on, and in accepting the premiums therefor, and in retaining the same, defendant waived the provisions pertaining to the age of the plaintiff; that at the time the policy was bought, he was preparing to board a train; that he made application to defendant's agent who issued the policy for insurance as specified therein; that the agent made no request for information as to plaintiff's age; that no representations were made concerning his age; that the application was made verbally with the intention of securing protection on the trip that the plaintiff was then undertaking for himself in his then condition, and to cover him at the age he had then and there reached; that under the circumstances the defendant's agent knew or should have known that plaintiff was seeking protection on said trip under such policy; that he then and there received such policy he paid for; that the defendant, in issuing said policy, and receiving and retaining premiums, thereby waived the provisions in said policy requiring the insured not to be over seventy years of age, and that by virtue of said waiver defendant was estopped to deny liability.
The defendant filed a second supplemental answer, consisting of general demurrer and exceptions, specially alleging that its agent did not know the age of the plaintiff, did not know that the plaintiff was more than seventy years of age at the time the policy was issued, and that as soon as it learned said fact it tendered back the premium to said plaintiff, which tender has been kept good and intact since it was first made; that it was the intention of both the plaintiff and defendant that the contract would consist only of the very terms set out in the ticket policy itself; that since the policy was issued without application of any kind, the contract was represented entirely by the presented instrument itself.
In response to five special issues, the jury to whom said case was submitted found as follows: (1) That the defendant issued to plaintiff the policy of insurance introduced in evidence; (2) that on November 24, 1930, Barker suffered bodily injuries as a result of a fall at Clovis, N. M.; (3) that such bodily injuries were effected solely by external violent and accidental means; (4) that the plaintiff was wholly disabled by such injuries, independently of all other causes, from performing every duty pertaining to his occupation; and (5) that the plaintiff was continuously and wholly disabled by such injuries, independently of all other causes, from performing every duty pertaining to his occupation from November 24, 1930, for a period of twenty-two weeks. Judgment was entered accordingly.
The first proposition is: "Since the plaintiff's pleading shows upon its face that the contract sued upon specifically provides that persons under eighteen years of age and over seventy years of age are not covered under the contract sued upon, and since nowhere in his pleading does plaintiff allege that his age is between eighteen and seventy, and thereby within the purview of the policy, plaintiff has failed to allege a cause of action within the purview of said policy, and defendant's general demurrer should have been sustained."
We overrule this proposition. The issue of the age of plaintiff and his right to recover because of the age limit stated in the policy is fully raised by defendant's pleadings. It is settled law that defects and omissions in the pleadings of one party may be corrected or supplied by allegations in the pleadings of the other. Texas Employers' Ins. Ass'n v. Arnold (Tex.Civ. App.) 57 S.W.(2d) 954.
The second and third propositions are presented together. By the second proposition it is insisted that since the plaintiff has not alleged in his first supplemental petition that the defendant knew that the plaintiff was more than seventy years of age at the time of the issuance and delivery of the contract sued upon, no waiver is alleged, and defendant's general demurrer in its second supplemental answer, directed to plaintiff's first supplemental petition, should have been sustained. The third proposition is that since the law in this state is that where a contract of insurance is issued without written application and without inquiry as to any conditions which might void said policy, and since the terms of the contract are the terms set out in the writing itself, and since the failure to make such inquiry constitutes no waiver or an estoppel against the company from relying upon a breach of any of the conditions and provisions contained therein as a defense to a claim and since the plaintiff can only recover where he is able to bring himself within the purview of the contract as issued, the allegations of plaintiff's first supplemental petition that he was fixing to board a train at the time he made application for the insurance policy, that no request for information was made of the plaintiff by the defendant's agent, that there were no representations by the plaintiff concerning his age, that said application was made orally with the intention of obtaining protection on the trip he was undertaking, and that the defendant knew or should have known that the plaintiff was seeking protection on the trip under said policy, are insufficient, as a matter of law, to allege a waiver or an estoppel, and the defendant's general demurrer, directed to such first supplemental petition of plaintiff, should have been sustained.
There is no merit in either of these propositions, and the principles of law announced are foreign to cases of this character.
In Equitable Life Assur. Society v. Ellis, 105 Tex. 526, 147 S.W....
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