Dunken v. &198tna Life Ins. Co.

a land.” liminary step plication particularly not render way be tion, with the field “require cate or * * * but construed as to or preference, or the which he shall thence, entry, notes shows that “tq. directed him to— Declaring 33 Tex. surveyed ing provided, one, the land until survey describe vent holders of SO, 1856, expressly entries” and to the satisfaction Supreme Court, tificate to an exclusive survey amended as to eliminate the “location” applications survey “Either And see [3] We think And under the statute after it had been so ^[4] the. State, land, public keep entry scrip surveyed, Weaver. An survey entry. a land Legislature titan and was not make the failure conveyed by McKinney’s Appellee argues district was not satisfactory surveyor by thereof, plain, survey in scrip together as then made from of without land by filing it, the land strictly effectually appropriate Compton Hatch, it to office.” his office void the made described after said But such Tex. that— for land survey, actually made, notes, applicant way, finally the certificate having or surveyor’s nothing towards give by “entry” written be shall be made certificates to be so same land prevent holders of certificates for the owner of not allow to be be the date of the register December with written other Civ. in entry, construing corrected think, same but another examination of the provisions the owner— answer to the virtue of said certificate.” any right held Ward v. authorizing location accordance of such certificate. a surveyed the same land, irregularity survey with an describing App. 297, in his as another reason certificate No. 447 had a to file his “book calls therein included acquiring title to the legal duty entry construed as to office, September General therein this act previously 2, 1872, returned, DUNKEN for, so court held county,” entry evidence as of said 135 S. of proviso application over way not to with the surveyed is a administrator 84 S. W. fact that a in his the claim having the act itself entry survey Land land public taken from “entries a land cer- to copy register not have application argument. was not a sive, Act than a location legal patented, surveyor. incorrect or a file surveyor properly W. location together made Conner, provide applica- of title declar- v. or certifi- Office; same: be so office, with- made Aug. land field why pre- pre- .¿ETNA Eyl act for and ap- or of a miums, i.w.) premium may be considered. 4. ance 3. Insurance we sitates a reversal of the rors 2. Insurance 5. Insurance ment policy or based on provisions requiring ment that he take manded to the court below for a new ably on of so far a valid sufficient waiver miums. sary; distances on tified to show that he had title to and an order to that effect will (Court 1. Insurance presumed knowledging payment ered held ing not be forfeiture, character, LIFE INS. Insurance Insurance nonpayment, slight entered As the law abhors Where it is claimed that an insurer waived Waiver of forfeiture An Whether a life In an action invalidity think amount in and will waiver is warrants nonpayment March need not conclusion reached that acknowledgment and in such case conduct with field notes did not warrant a location of Civil supported relied on as circumstances to show contained Rehearing, April survey the calls. the insurer. prevent here. estoppel. actually go premium @=>371 @=>668(15) @=>371 @=3388(4) no act @=>141 —(3) Acknowledgment prevent the insurer from assert- @=>668(3) inaccuracies were v. CO. necessary. cause, although on depending only of evidenced ground 1920. On Motion for Appeals (No. 6168.) slight AETNA than those the failure waived being essentially supported —Waiver in a life a life policy acknowledging pay- nothing —No rendition here prompt payment of It is clear due for premium constituting conclusive. instead, consideration. insurer from forfeiture, delivered, —Waiver land. —Whether —Waiver circumstances. between judgment, act LIFE INS. compliance of Texas. Austin. delivered on provisions insured is of forfeiture need rule does not policy is conclu- premiums. by party 1920.) the land held for same on the acts and consideration so points accordingly question of was deliv- recovering suit; forfeiture will seize forfeiture of forfeiture as to unilateral an insur- was not such er- in a life CO. respect assert- be re- neces- jury. failed judg- neces-, prob- as iden- pre- held but es- ac- Digests @=>For Key-Numberea eases and Indexes KEY-NUMBERIn all (Tex. 28, invalidity April asserting top of reversed and the On remanded the insurer case. 1919, J. fill Denton, again, first E. the case trial Hon. the came on for the because appointed evidence, presiding, the to premium, held, for Clark who had been under the Judge vacancy jury. the created the death in, on the all and after evidence was Rehearing. On for Motion Judg- motion, court a instructed verdict. <@=>372 may ment filed Plaintiff waive was rendered for defendant. 7. Insurance —Life May trial, soliciting agent provision motion 13th have no for new which on shall that given. appeal change power policy. was overruled and notice of to terms 1919, plaintiff bond, appeal 4968, June Notwithstanding filed art. Rev. St. duly approved, presented to company may provision and the case is that or a life waive upon power this honorable court court ant.” soliciting agent the error trial au- no instructing thority change for defend- verdict the terms of to waive or policy, agents such result and waiver acquiesced offi- authorized Opinion. cers. foregoing statement, As indicated <@=>664 of transactions Insurance —Evidence appeal this is and the waiver. admissible on to other opinion upon appeal of this court the first original policies Where two poli- time, reported two for cies cannot dealings issued at the in 204 241. The S. W. court past judgment unrelated that against deemed so be reversed a the insurance to waiver or forfeiture company upon policy No. which will nonpayment inadmissible, be due would be termed the first proper charge an im- because of upon intent court, of the trial and also policy, and later of either waive testimony because exclusion of certain in- of another of them was which one offered the insurance tended to converted. limiting error of the trial court testimony Appeal Court, company. introduced McLennan from District County; Judge. Clark, Upon appeal E. J. the former this court was judgment asked to reverse and render Dunken, Action Mrs. Pearl Stone ad- company upon ¿Etna against ministratrix, Life Insur- testimony tending there was no Company. judgment ance fendant, plaintiff appeals. Prom a for de- policy. declining waiver as to either In Reversed request expressly it was held that the case remanded. trial, remanded another Spell, Sanford, Taylor, E. A. D. W. admitting testimony, that after the excluded Waco, ap- Stanford, & all Forrestor evidence, as all well other admissible pellant. clearly the issues of waiver should be Dallas, Moroney, appellee. W. J. distinctly submitted to able judge presided trial being who at the last' following BRADY, take the J. We state- opinion there was no evi- appellee’s brief: ment of the case dence whatever authorize submission poli- “The suit two life insurance involved jury, per- of the issues of waiver $10,000 each, com- issued defendant cies for pany emptorily instructed Dunken, died on the life of who J.W. error, this we think dicate in- being will a 7- June year one No. being our reasons. term convertible 20-pay Both No. commercial Key (204 In of Chief Justice payable policies sured. The as- the estate page 243), S. W. he made this statement brought by Mrs. Pearl suit for the court: widow, surviving as ad- Stone estate of W. J. ministratrix deceased. Plaintiff conclusion, proof “In seems to us that the the defendant right upon shows that to recover term undertook convert the policy was the terms of that instrument 20-pay that the into note forfeited failure policy 152775 had been effected and conversion maturity, for the unless lant ifested It also seems at the time of its in lieu of No. had been issued and delivered 98322, Dunken’s death. the been appear appel- he made in force at time W. J. and was right man- forfeiture and had waived pleaded in Plaintiff further keep intention to alive. that, the conversion had alternative if equally pol- clear completed and the new icy operative, never became because of obligation, force, was still term comply failure of Mr. terms ^in parties understood the old as all him, which it was sent to conditions one be- remain in new was to ap- unless it shall made to came effective. The case tried first Jan- compliance pellant intended to waive with such uary 25, below, 1917, in court the Hon. conditions, as valid and and treat presiding, Denton Geo. of a and on N. the verdict binding. say cannot that there was no tes- We plaintiff was rendered for timony tending to show either whatever $14,180.79. appeal honorable court to, therefore decline waivers referred Key-Numbered Digests cases and KEY-NUMBER in Indexes <S=>For sumption for other trial such ted, on the further have court was erroneous. to the ment for it.” mane quire will seize of such mony in the Ellis pay in the have not, to the effect principle. making question of intention to N. V. forego linquish Therefore, that waiver of the ance will ment to that forfeiture. The though although against self the lateral er, does acts based surance, and has vious course of ance 147 S. W. at nizes the continued actions with the Annuity Co., whom it speaking . “And it Upon' ^[1] In the [2, grant appellant’s request, as parties 21 N. W. 774. forfeiture, presents and odious, and acts or conduct of followed in Underwood in our was also held in 3] progress Society the submission of concluded things, been should not have jury, present determination them; intention, There is another reasonably statement in its character and a re-examination of the its result. Hence the perhaps become § upon slight would that the result, such course of conduct related to operates, While 1353; if advantage is relied not to be Hollis v. State Ins. unless Case admitted, effect, page 1156, no said: that waiver is case that forfeiture it takes no thereon”— not be law Ellis, established conduct on same doctrine is remedy against themselves assumption testimony Tex. at insured, and slight than Titus v. Insurance requested indicative forfeitures, was made the former course has been followed which the insurer controls this and that Supreme, Court, among be, validity circumstances law wondered is not a maxim that forfeitures of a forfeiture there Equitable must be 105 Tex. been that case that a absence those the admissible, slow negotiations limited Mr. Justice the issues the doctrine of waiv and principle page 388, further settled waive initiative, citing Joyce after holding as is would anof made. testimony limited, eager essentially that circumstantial, no opinion of this soon party constituting testimony, upon the as- depends upon kept mind, Security Co., give knowledge at as render the contract question Life part other fundamental effect to intention to act as evidence announced announced failure to any agree would re- be admit- in 194 W. of waiver upon page 536, to relieve and in it formerly. But it is of insur or trans grew Phillips, and and re against the hu Co., v. ADTNA Assur of the the on In recog S. Iowa, judg- party testi- rule, Life uni one up- an- we grounds al- up 3.W.) 'dealing time ence sonal friends. ken extension premiums, but which were waived every evidence it be based awas Dunken in detail all the evidence which is correspondence person sary newals. The without to raise the of fact for the date ters note for dicate part on his insurance from en in reference to the receipt, turn instance no such form or tension note was is ease. Mr. if has been since or his office originally from Mr. Dunken and delivered convert conversion authority should be effected. that supervise ruary out a to amination, tions from the contestable, LIFE ^[4] We shall not undertake the second he the term Mr. avoid the pertaining Alexander policies relations of his he conducted the term sent of this policy and five respect.” February 16, 1916, which 21st in whose favor it desired the new 30-day advising between the that of extension the same consideration, which would show that INS. CO. $106.45, for through so to very of time years documentary Alexander wrote Dunken to re- evidence indicates that duty the state of in question force to loan was the forfeiture controversy. there between Alexander and policy be indicated: The.course requirement note, jury. However, delivery to the examination he became cordial, also testified that stating, do, company were, him to as back first-policy, due inspection, just Ait. into a new his death. signed only to the and and asked if he desired who took this manager manage except executed an Mr. Alexander and was him until Mr. Dunken could estoppel. Mr. the January in policies of office, nor is it general manager attended to all of all replied, for failure to controversy “Your waiver as convert a sufficient amount once, inception Tennessee, conversion On manager .The Alexander wrote goqd previously negotiations granting made they only. and up 28,1916. essential February 26, regard original the policies, to converted to send medical ex- correspond it at Mr. Dunk- conversion premiums was sent. insurance point it was a following extension either keep the is neces- the time inquired this ex testified In this instruc thought gold sending on Feb- in a form and he to the policy result is in- issue Dun- mat once date per and pay re in he in (Tex. ly open premiums. in- construction that it was to the the difference back delivery, embarrassed, financially the the to be an absolute within and tended Dunken was contemplated by parties time most favorable ior the asked terms Alexander giv- extension give. note on No. 98322 Feb- could Furthermore, language en. of this letter ruary that be 24th Alexander wrote necessarily the intention the conversion does ask to make require effecting, new the loan and requested by value, proceeds due before there balance for loan to send conversion; The ref- in in be a on the cost of to the case used meantime, protect erence amount due the term sign delay, the amount nec- transaction well mean the ex- Dunken should essary did, note, make settlement with return- it was tension prerequisite Alexander, possession of rather than condition who hold ed to the same occurred on June complete delivery policy death, ef- and the which until after Dunken’s fecting prom- Dunken never contract. Alexander signed papers, premium the loan nor did he note cancel and return ised to premium and conversion cost and the 1916 the conversion made and when the loan was papers interest, fact, completed. but these February English, It was in his safe after death. Mr. J. L. found agreed correspondence appellee, president that all between sent the new vice company Alexander, statement, policy ceased Alexander this to Mr. with policy exchange Alexander to the letter of “Inclosed find this 1916, transmitting inclosed March surrendered.” He also No. 98322 covering policy. receipt “I not Mr. Alexander testified: do I noti- and blanket 1916 renewal premiums copy He where also loan forms. letters to 1916 and find negotiations report for the not latter Mr. Dunken Alexander to fied instructed off.” new number. conversion of said term than March on the 31st He president stated, been the vice be made has As that if the loan was instructed Alexander to the com- the instructed be returned to Mr. 31, 1916, properly executed, report pany later than March loan forms not monthly reports policy, you “notifying new by were made have collected and $312.- us that April, May, necessary March, and Alexander for amount This was the 97.” reports conversion, application complete not but the shown company of these after contents During the 1916 this time the the record. and of the loan value premium at its home office the renewal interest. and May 1, receipt policy No. under 98322. On not indicate that letter does This Wright, Mr. who the home officewrote to Mr Dunken to be delivered auditing premiums of Alexander was at the books then loan was made and until the Nashville, paid, the letter stated that nor that to be delivered to pn inspection Feb- been instructed and examination. Mr. Alexander ruary 28th, by report English, necessarily Vice President bear it does not this con- At least increased on the sec- struction. report, that, policy in his March ond March 4th Alexander transmitted this collection, papers, policy, unable make “If he has been loan and a form author- receipts, policy, with the renewal izing to deduct the 1916 letter loan, credit.” The also proceeds be returned ex- mium from the receipt 1916 renewal under plaining conversion, premi- stated that the cost of credit, been returned for value, number had um, and loan which were received home could not understand office and why Mr. Dunken about March 6th. In this not returned pleas- Alexander “I Alexander stated: take

letter Mr. receipt covering years you your 1912 to handing $10,000 and blanket ure herewith inclusive, requesting Wright Mr. 20-pay life converted from investigate report. 7-year renewal He stated term.” also that the loan to receipt referred was not returned 'signed of 1916 Dunken with note must two Wright’s April 28th. Mr. witnesses, authorizing and credited the form and also reply Alexander was still premium. shows con- He the deduction Wright receipt, which obtained the blanket and returned letter with this statement: “The cluded the credit, and complete it was credited amount due is now transaction May 10, In a on this $312.97, conversation determined as follows Wright that Alexander told Mr. deducting matter Mr. (stating after the balance due papers loan had sent the premium the conversion cost and Waco, and that the matter Dunken at value). interest the net loan fail ing Please do not correspondence. your This statement to send me when return- was probably did not have refer- nothing Alexander of ence above.” There is in this correspondence requesting the re- to indicate that sent letter inspection, for it does turn of the clear- for examination but is ÍBTNA LIFE INS. CO. :.w.) [5, phase 6] Dunken to There is asked another of the case that he ever wrote or return the same. it referred to the probable more must be It noticed. The second provision: matter of settlement'with contains the for the new “This shall not take effect auditor, appears Wright, the that Mr. It actually first paid hereon expected insured, during good wrote the that he health of days, thq that he a de- for which Texas in the next ten " ' livery policy.” “complete the neces- would see Dunken Wright sary.” Mr. is not clear whether Under the.facts circumstances of this up meant to take think the first and collect the loan execution of regarded must be as the cost conversion, or take due on the balance premium, of conversion and the 1916 reply to this note for the same. extension payment, initial the amount due secretary Wright, assistant letter of Mr. and'by delivered; when the contract was indicating interpreted the letter the terms of the contract the policy Wright’s return of to effect intention is made the for the initial that, “The insurance and stated payment. Appellant in contends anything lapsed, can before estopped' proving, surance necessary it will be done avoiding contract, application for revival.” submit an premium acknowledged in the May No com- was dated letter paid paid. have been proposition not fact This however, with Dunk- munication, was had supported by seems to be com- en, any him that nor notice Dobyns following authorities: v. Insurance lapsed; pany insurance considered the Co., Kent, 144 Mo. 45 S. W. 1107: 3 Com. appear the mean- not does 260; Wolf, Insurance Co. v. Ill. Fennell, 37 87 49 - any attempt pro- there had time 251; Am. Dec. Insurance Co. v. policy from Dunken. cure the return of 180; Anderson, Insurance Co. v. Ill. Ill. 77 secretary day the assistant same 384; Co., (Ohio) 2 Fellows v. Insurance Disn. acknowledging receipt Alexander, wrote 128; Co., New York Ins. v. Nat. Pro Cent. covering premiums blanket Y.) Co., (N. 475; Ins. tection Dalzell Barb. inclusive, years on the 1912 to for the Mair, 352; Camp. Fay Bell, Taunt. appears stating: policy, “It Insurance, p. 335; Cyc. 493; Marsh on vol. 20-payment this note; 25, p. 730, page 726, 3,§ also 9 Ann. exchange plan for con- was issued life Eng. Ency. Law, p. & Cas. 19 Am. policy 98322, and in view vertible term the collection, you have been unable to fact that make go rule does not to the extent policy (152775) should also be denying right Al- letter not inform This does returned.” actually'due to recover the amount not exander that been de- notwithstanding premiums, the recital and to be delivered livered nor authorized policy. pur- For loan were executed and the bal- pose prima treated is paid company, ance due but that it should payment. But facie evidence is when it be returned because Alexander had been “un- sought to avoid the contract and to de- make collection.” This able to seems be it, springing rights acknowl- feat expression from the last executive of- edgment in the is con- death, ficer of the and, Wright before Dunken’s clusive. in connection with the letter of Mr. lay . down think these authorities We to his intention to to Waco and, case, independently in this correct rule “complete necessary,” may, justify waiver, question of issue that the the inference still did not whether the com- be submitted regard forfeited, may the insurance as pany intended and in fact delivered the n evidenced the intention absolutely any forfeiture or to waive condition as to complete If be contract. as a made to livered a contract found delivery, if Alexander appear should still be able was so de- procure make settlement and intended to become effective as .collection to. delivery, on and this be summary bearing fact, of the evidence as a we are of sufficient, question think, precluded deny- of waiver we would be ing that an issue of to show fact is made of the first probative avoiding This, the decision Its the contract. slight, agree may course, preclude recovery but cannot be not it of more than a mere for the conversion cost and 1916, to no scintilla amounts they course, paid, fact in which if in seems there .evidence, undisputed. no evidence be would be to warrant the sub- to' reversed, will issue. mission of the (Tex.- they with time. cannot be for trial accordance said that cause remanded separate expressed -opinion. were so in this unrelated as that tile views company, agent acts of the or those of remanded. its Reversed and authority, past dealings Rehearing. to waiver of Motion for forfeiture for due, would be inadmissible appellant a mo- filed Able counsel of intent to later waive appear rehearing, hi which there tion to a forfeiture of either or of another misconceptions the effect policy to which one of them was intended opinion in case. our to be converted. practically urged that we have [7] It difficulty, After much we have concluded Statutes, article Revised nullified rehearing; overrule the motion for provides soliciting insurance think it this case for to add that we reversed agent of the shall be deemed the only upon the issue change, power waive, not have the

but shall waiver, but also as to the de- terms or conditions or alter application livery of the second not intended We have binding contract in effect Mr. hold, hold, that Alexander nor to such do we death. This have been does not acts, power, tend but challenged in the motion for waiver, to show rehearing. company only or ac when authorized the quiesced Motion is overruled. named officer some executive Motion overruled. knowledge acts. of his opinion that the stat our such case it is competent It is ute not violated. stipulate insurance as only accomplished here, a waiver through KNIGHTS AND LADIES OF conduct of execu SECURITY v. (No. 8330.) SHEPHERD. stipulation officers, itself but that tive be company, and a waiver waived (Court Appeals of Civil of Texas. Dallas. agents of its authorized acts result Rehearing, March 1920. On acquiesced acts officers. The or such May 8, 1920.) agents become the acts of statute, company, notwithstanding the <&wkey;365(2) 1. Trial submission —Erroneous such for the benefit of com enacted group by separate issues as a held cured sub- panies. mission. opinion our is also contended that In an action on fraternal benefit certifi- Walker, with Insurance Co. v. conflict plaintiff’s cate favor of issued wife where liability ground and Insurance Co. 61 S. W. Tex. was denied on the of material misrepresentations concerning, health, Stubbs, insured’s 216 W. 896. We- do not think v. our S. instruction, requiring erroneous opposed say applicant whether insurance was holding in cases. In the either these ’ prohibited complaints of certain affected showing Walker or there was no evidence Case group, the submission cured tending knew separately. each misrepresentation application, <&wkey;240(4) which seems to have been known to Witnesses as to health Question — leading. properly excluded as agent of insured held local and the insured. In the representations on a In an action fraternal-benefit certifi- Stubbs Case the plaintiff’s favor of where cate issued in wife brought not shown to were have been liability denied on the that insured home to the officers of the ques- misrepresented health, of her the state not, Our in the instant case does cough- a witness as whether insured tion to to period prior supposed, go to be to the extent seems during to her death ed by any course held, leading. properly excluded dealing agent, between the insured <&wkey;268 of the latter husband as Evidence —Declaration acquiesced marriage known held inadmis- to or some execu- health at to insured’s misrepresentations. sible as tive officer named a fraternal benefit certifi- action on In an misapplied [8] Nor we think we have do liability plaintiff’s wife whereon issued to cate was tions as Case, che doctrine the Ellis as announced misrepresenta- ground of denied Supreme Court, in reference health, declaration insured’s tending dealing course of to show waiver. mar- at the time he husband that insured’s original $10,000 policies, The two constitut poor health, and that was in insured she ried appellee, insurance with up” of se- her he “doctored held, for and issued being the same insurance, too curing inadmissible time, any bearing^on sometimes re general to have remote and too misrepresentations. arranged mitted and extensions for at Digests and Indexes Key-Numbered oases KEY-NUMBER ÉzsoFor

Case Details

Case Name: Dunken v. &198tna Life Ins. Co.

Court Name: Court of Appeals of Texas

Date Published: Mar 10, 1920

Citation: 221 S.W. 691

Docket Number: No. 6168.

Court Abbreviation: Tex. App.