Union Cent. Life Ins. Co. v. Short
| Decision Date | 14 May 1919 |
| Docket Number | (No. 6223.) |
| Citation | 212 S.W. 225 |
| Parties | UNION CENT. LIFE INS. CO. v. SHORT. |
| Court | Texas Court of Appeals |
Appeal from Guadalupe County Court; J. B. Williams, Judge.
Suit by H. E. Short against the Union Central Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
Wurzbach & Wirtz, of Seguin, for appellant.
Dibrell & Mosheim, of Seguin, for appellee.
Appellee sued appellant to recover the sum of $270, alleged to have been paid on an insurance policy on his life, which he alleged he had been induced to apply for and procure through the fraud of an agent of appellant. The cause was tried by jury, and, upon responses to special issues submitted by the court, judgment rendered in favor of appellee for $298.39.
It was claimed by appellee that the agent of appellant induced him to take out a $10,000 life policy, permitting other policies to lapse in order to insure with appellant, upon the representation of the agent that the amount of the premium would be $270 each year, and that he afterwards discovered that appellant was claiming an annual premium of $337.10. The jury found that the agent represented to appellee that the premium would be $270; that appellee did not know at or before his acceptance of the policy and the execution of a note for the premium that the policy provided for an annual premium of $337.10; that appellee used ordinary care in signing the application for insurance, which showed a premium of $337.10, and exercised ordinary care in accepting a policy of insurance which provided for an annual premium of $337.10.
Through propositions under the first assignment of error it is contended that under the law, as appears in articles 4953 and 4954 of the Revised Statutes of Texas, the policy of insurance and the application for insurance constituted the entire contract between appellant and appellee, and the agent could not, by any representations, vary the terms of the contract as contained in the application and policy; that appellee was guilty of negligence is not discovering the fraud, if any, and was not damaged because he had been insured for $10,000 for the $270. These propositions are offered under an assignment of error which assails the action of the court in refusing to instruct a verdict for appellant.
Article 4954 has reference to rebates and discrimination. Under the allegations of fraud and the evidence of appellee, we doubt the applicability of the two articles to this case. There was nothing in the evidence that tended to show that appellee knew that he was contracting for any but the regular premiums.
The evidence in this case shows that appellee signed an application for insurance in which was written in plain figures the premium of $337.10; that the policy with the application attached was given to him by the agent. On the envelope the amount of the premium, $337.10, plainly appeared, as it did on the policy and application. Appellee testified that he did not discover the amount of the premium for about a year after he applied for and obtained the policy. The jury has found that appellee did not know what was in the application and policy, although they were in his possession for months, and the case will be considered as though that is an established fact.
There has been some contrariety of opinion on the question as to whether the insured is not estopped from setting up errors in an application and policy, the former of which he signed and both of which he had in his possession for a long time. In a Connecticut case (Ryan v. Life Ins. Co., 41 Conn. 168, 19 Am. Rep. 490) it was held that it was inexcusable negligence to sign an application for a life risk without reading or having it read. The court said:
So it was held in Ins. Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, 29 L. Ed. 934; Walker v. Ins. Co., 46 Kan. 312, 26 Pac. 718; Briggs v. Ins. Co., 65 Mich. 52, 31 N. W. 616; Ins. Co. v. Freedman, 159 Mich. 114, 123 N. W. 547, 32 L. R. A. (N. S.) 298; Cuthbertson v. Ins. Co., 96 N. C. 480, 2 S. E. 258.
No matter what representations may have been made to appellee before the application was made, it is not pretended that any device, concealment, or fraud was used at the time the application was made, and the policy followed the terms of the application. Appellee knew how to read, and should, in the exercise of ordinary diligence, have read the application. It is true that appellee testified in his direct examination as though the application was blank when he signed it, but on the cross-examination he admitted that portions of it were filled, and it is clear from the intimate matters about himself and wife written in the application that the information was furnished by appellee. The only mistake complained of was as to the amount of insurance in another company. The written parts of the application were done in the same ink. He not only failed to even look at policy or application, but kept them for about a year before examining them.
The distinction is drawn between cases where the fraud or mistake is such as to render the policy void ab initio, and those not rendered void, and the insured has actually received protection under the policy. In the first instance it is held he is not bound, but in the latter that he ...
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Bankers Life & Loan Ass'n of Dallas v. Wood
...p. 724. And was made prior to the issuance and acceptance of the policy. 23 Ruling Case Law, par. 21, p. 328. Union Central Life Ins. Co. v. Short, Tex.Civ. App., 212 S.W. 225. (3) There was an absence of pleading or proof, or finding of the jury, that the insured was induced to accept the ......