Southern Surety Co. v. Butler

Tes.) LW.) (247 judgment seventh, over- also should The the second be will 'be reversed far as so recovery ruled. awarded of $15 a week assignment lump trial sum, judgment fourth is that [3] The the weeks in a the set aside will be court erred when he refused to here rendered that he recover pellant grant appellant “be trial verdict cause,” quoting new that the amount brief, appellant’s weekly payments “no interest from thereon of the he propér judgment upon August 2, an was ruary based entitled to from to Feb- 6”; 2, 1922, fifth swer No. date of quot assignment erred,” below, is court court that “the that he recover of ing brief, “in the lant further $15 from said week the 215 weeks jury special beginning February 2, 1922, entered on follow- (cid:127) assignments consecutively issues numbers 4 5.” The thereafter. The findings are first overruled. on the The disturbed far as in favor so it is Gregory far second issues warranted Hatcher for an interest incapacity recovery as that determined awarded injuries work from the permanent. As he was total sustained findings on and fifth the fourth thereof, contradictory were were not SOUTHERN SURETY CO. v. et al. BUTLER ig immaterial, properly and the trial court (No. 6824.) judgment. rendering nored them (Court Appeals of Civil of Texas. An- power court [4] While the tonio. Nov. 1922. On Motion recovery lump adjudge appellee in a Rehearing, 10, 1923.) Jan. compensation en he was found by questioned titled to — <&wkey;646(I½)Company 1. Insurance here, questioned prove falsity we is materiality represen- pleaded. no tations take are nevertheless think we pleads An was without insurance of the fact the court mis- tice such representations insured to power. defeat declared in is policy, must, under Rev. St. art. questions arising it, “not set all [quoting] by prove falsity representations as well parties agreement of the tled materiality, as their interested therein and within the terms provisions have issued the ad- shall, act, of this as other vised. provided, Indus wise determined” <§=>668(7) misrepre- 2. insurance —'Whether only Board; trial Accident and it after sentations insured material ruling and board made a “final decision” question conflicting testimony. on empowered to “determine the courts Whether in a cause.” the issues Article 5246— jury ques- material is a Supplement. Vernon’s tion where the evidence is controverted. question compensation to as to whether give 3. Insurance <©^390—Failure paid lump in a sum or should discovery misrepre- after act, and arose under determinable sentations bars defense. provisions. It had not with to its reference failure insurance of an agreement parties, been settled notice of its be bound determinable, in the first and therefore discovering contract after falsity stance, representations application, alone. the board Rey. required by pre as art.. creates never the record that against recovery absolute bar present board, sented ed for policy. de time to the court for first power, charged was without <&wkey;>378(I)Company termination. court 4. Insurance — instance, think, agent’s knowledge first repre- we to determine it pass sentations. it had but do so could charged Re A In Lumbermen’s health the board. insurance agent’s knowledge with its Behnken, ciprocal Association v. health of insured Appeals, Galveston of Civil Court here, reached a conclu facts unlike j&wkey;>I5l contrary, (2) Application a writ of error was sion to the granted and, policy. case; construed with while further ac in that taken, seems, the writ has tion on be construed approval of the decision of we Employers’ Indem Commission nity Corporation <fc>264(i) representa- 6. Insurance —False Woods, defeating liability tions if material are not warranties. Supreme the view the indicates Court takes harmony Where the for health question to should be forfeited have reached. conclusion Key-Numbered Digests other eases see and KEY-NUMBER in all and

<fe=For continuously actual to made with and confined for if her house false answers affe,ct to deceive or under of the constant care war- do not constitute physician, rendering impossible a to for se, make warranties to ranties since perform saleslady, her duties as a subject to and absolute statements must be disability total extended November to no other construction. prayed for which she for Misrepresentations <g=>256(I)— Insurance 7. par- $336.66 and an $50 for additional thing represented poiicy, unless avoid disability, penalty tial for and to loss. contributed fees. application in- in an for Ealse answers special Eirst, defenses were: no.t, Rev. St. art. avoid actu- surance under misrepresentation obtained and fraud thing represented unless the and, second, contract; were material no to said ally the contributed indemnity payable any loss dis- “for or policy and due became ability wholly part, directly or caused inor 14) by <fc»882( Appeal error and 8. —Defendant indirectly, any complicated by or or complain it was sub- raised issue cannot affecting any generative organ or jury. mitted to the organs appendage prima- or of same.” pleaded An insurance rily operation pelvic one, awas as when obtaining misrepresentation in and operation appendix the performed appellee’s remove was cannot of likewise re- womb was moved,, sickness was caused < =665(4)— held not to Evidence by any appendix re- and its ailment disability from excluded show disease. received ailment of the but was caused generative organs by the con- not covered policy an on a In action tract, indirect- in that event was caused disability indemnity for an complicated by part ail- an evidence organs. That on No- ment of the same time the congenitally 22, 1920, prior un- of institution uterus of insured which vember the properly, developed to function suit, appellant so as not tendered to the notified the dis- not show that the was not ability premium paid, return a dis- contributed was caused or null declared exception organ an latter ease receptive date void in her lee’s replied, Appellee if her answers were un- application, appellant estopped true from Attorney’s pen- fee and Insurance <©=>602— pleading them as a recov- alty not allowed demand is where excessive. ery because the fill- answers were made and penalty fee which can agent ed out filled in an the com- against an insurance be allowed pany, upon complete a full and disclosure Rev. St. art. to failure of agent physical condition at all loss recoverable, times, and, any where the demand was for for if amount, an excessive so that no made, they appellant’s agent. were made b,e sus- Appellant replied was made tained, where the loss recovered was by appellee handwriting; in her own out three-fourths of the amount demanded. no statements were made that contained Appeal County from Bexar Court. agent authority alter, amend, and no by Rooney any policy provision requirement. Mae Butler her hus- Action or waive or Surety against Company. band the Southern The case was tried Judgment plaintiffs, ap- jury. was for the sum defendant peals. part $371.06, being part Affirmed and reversed sum of $286.- attorneys penalty, rendered. fees of $50.00. Baggett, Barrett Barrett & and Sam’l G. proposition Appellant’s first is the court Antonio, appellant. all of San instructing a verdict for in not erred Brown, Antonio, Leonard of San and J. L. pellant. predicated upon provi- This is Webb, Houston, appellees. sion in the that: COBBS, Appellee brought J. this caused loss or or against to recover on complicated by directly indirectly, part, time surance .loss any generative any organ appendicitis, necessitating her re organs appendage same,” ospital day August, moval to 9th policy: provision performed, where appendix moving the and her uterus. Before hereby applied for shall “That pneumonia, prior stricken with' and hour set the date effective Digests Key-Numbered all cases see and KEY-NUMBER <&=>For Co. v. Weatherford false or assisted in App.) the date on answers, if App.) 234 S. W. 1099. tract. It is now v. swers, and that would not Manhattan Life tion ance, propounded 1919, and was 568; tion within 90 App.) forth pany, record that solute Life Ins. Co. v. peared if terms of the pellee, and free from Masons Guarantee Life swers as the basis of forfeiture of ease, ing the insurance. which the appellant dition its ical attention or art. 51 discovery, tile uterus. ed her uterus was at physicians riality ed to establish the controverted makes Tex.) She of acute The defense was [4] Miss delivered informed that Tlie evidence ^[3] [1,2] Calvert painful of its S. W. 270. pleading misrepresentations agents past 4947; 16, she had had 15 therefore Nat. discovered, in such 156 W. To advised, 178 S. bar. 797; mentally and when that It devolved falsely bodily five (Tex. .support long appendicitis which S. Life Mitchell have it were known information (Tex. false, Baker, menstruation caused Western Ind. Co. v. Free & Acc. discrepancy in Revised show, gave years, answering them, you claim the misrepresentations, which infir.mity.” appears upon Ass’n v. Civ. appellant too late that she was not been disabled after it sick. 353; Ins. Co. Wright 646; Civ. same, thereupon actually such defense while written surgical v. McLarn within 90 (Tex. it received effects suffering it a alleged falsity appellee answered App.) possession here the evidence upon appellant, under the same time removed. questions Sec. Mut. Life Ins. Milwaukee Mech. Ins. bound period If appellee had a to raise Hagelstein (Tex. you as well did not solicited this insur (Tex. jury question. discovered, v. Civ. undisputed notified v. had the influenza notice to the insur appellant through called 198 S. W. Stubbs treatment purpose becomingeffective Evert App.) the face any injury, dis- art. of 98 (Tex. from what the days and was there and Civ. in sound con- it; and solicited the insurance as the mate and to the contract. answers also, the in her, or had med- 4948; good it is an ab reports (Tex. of the an App.) 234 S. W. Civ. after the of secur- or could perform- through her an- during that it of her its re- fraud, infan- 1033; 1092; were swers with the App.) ques- ques- R. S. Fed. com- con Civ. Civ. Civ. 229 Co. (2« s.w.) ap- ap- v. became due and made with the actual intent to deceive. pellee’s Tex. answers shown that But tonitis chargeable uterus, ness she had or the menstrual primary tion. She was 1919, unless that the tributed to the attack of and authorities above cited. just Cas. vol. Civ. of the risk.” Delaware Ins. 26 pond answer was made with the actual absolute and Civ. arkana et Mch. answers do not constitute warranties Cas. Ct. Findley, To make a 98 Tex. 78 S. W. 716 with the actual intent to deceive or material Va. Wright (Tex. which must be construed surance Co. v. Nichols S. W. S. W. ^[8] The evidence fails to show It is a ^[7] [3,6] deceive or Calvert, affect the Tex. Civ. agent App.) 3, pars. 1894, 1895, Fire, etc., Cummings (Tex. App.) prescribed Having pleaded 618; but it is not v. Nat. False answers will not avoid a 998; her menstrual it answer —for the and no claim for represented thing actually 636). App. 29 Tex. Civ. separate operation 49 S. W. be shown in connection therewith in all provided contingency upon 70 W. 34 S. W. Palatine “shall al. Sun Life cited warranty invalidate the L. R. A. S. subject pneumonia (affirmedby Life necessary if such false answer was made App. 537, acceptance § v. ofCo. intent probability treated false. 320; subsequent above; Ins. alleged falsity 603; 222; fact, shown that 462; among Ins. Ins. Co. Works, Willson, operation, was obtained the menstrual voided period App. Ins. Co. v. Philadelphia Harris, the statement fact, Co., that were material to (N. S.) 981, Fed. Life Sec. Mut. Life Ins. Co. cause for the policy provided affect the whether “such false 64 W. Joyce Sun Ins. Co. Tex N. W. Life Ass’n v. Co. of the risk” —such other construction. put together purpose other there would have 100 Tex. indemnity. S. which the the influenza in v. Brown v. attack of 3 made such an Supreme Court, to remove the pains that the sick- in issue that any way Phillips (Tex. 68 forfeited to Munger, things remove the 4947, S., determined, it could be Insurance, 867; insurance, S. W. Civ. any way contribut v. of secur medicine endured 15 Ann. trouble. v. opera- intent R. false App.) (Tex. peri- Rep Civ. 695; 101 In se. 92 614

ments fect mitted finding. four tis, and should cause a reversal. We forming part directly she store. condition way. üve moval of the relieve time. disease, pressed sider prevalent among 124, 122 W. kins, The uterus work as she gans with affecting mony she had erative Stringfellow W. 36 S. W. or which she suffered So the avoided tion that were made Insurance Co. v. thereon All the issues raised We have It was Dr. deceive, 740; Kilgore not organ.’' Antonio, testifying, worked under is, “any find it—if years she worked pain continued This, of error and Paschal, job one that is loss or but what menstruation, organ.” an abdomminal They show that shown fairly infantile uterus Tex. 317; usually congenital. at menstrual 64 S. W. 79. continuously, it cannot had not been physician, removed was not reversable error testimony person the other Tex. Civ. found in favor course, tried and never sick. Brazelton, time for an v. development of indirectly women, frequently Wicker, is called considered all the distinguished doing. There Moore, not points disease Land App. such condition to remove him in his consideration at the side Brin v. answers in the its determination and who fully developed quite where the witness in this periods, performance of her trouble at the same wisely menstruation was medical & Loan Co. v. Wat made substantial issue to infantile uterus— Mr. affecting any knew the actual different Tex. Civ. not disease. To the same ef- she was McGregor (Tex. he did Tex. case were sub- Tex. 'assigned complicated Mrs. by appellant, Delpain concluded he was physician apply appendicitis. is born that any genera- department is whether appendici she could otherwise appendix. provided: Mangum the case attended her nothing is applica App. always assign- periods justice It is policy days, testi 55 S. App. sup 996; gen per or penalty and torney’s fee, an demanded was ment of ascertained to be due.” is further amount th.e with $286.66. reversed liable to her for makes the total The to ance than the amount items of App.) 242 less amount ner, surance Co. v. Smallwood et al. filed Courts of Civil amount cution ance within 30 able ages $50. tion to the mitted appellee a amount $386.66. The record in this ability, administered, “Where “Under In view of the American National Insurance pay a $34.40 face .by reasonable company on the amount of with an liable. Such has been the Upon by suit, pay the court is demanded. The amount has specifiedpenalty larger favor of and rendered in favor of Rev. St. was entitled art. 4746.” case $34.40 court. issue. here rendered in fails, 12a makes demand on the assured amount of less than three-fourths attorney’s' the whole of 498:W. by suit, collection of such Motion beneficiary in excess of that fails jury, case, provides that, period insurer than attorney’s fees allowed were careful attorney’s contending First Texas Prudential In- In other 1911, art. 4746, requiring holding due, construed makes a demand for an affirmed. cent, demand, pay loss, fee affirm the which it is held: asked due, in two investigation and a reasonable at under a penalty amounting the amount of loss where the respects fees not liable for such $84.40 accordance here- $286.66, court, awarding fees under Rev. where the insur- recovers a less and recovers a which is to mean per loss, together it. cases: ruling subsequently $50, fees allowed Co. v. loss. shall be insurer found cent, life excessive. days’ in addi- amount of $50 prose- larger insur- judg- dam- that, loss, This Tur- sub dis li-

Case Details

Case Name: Southern Surety Co. v. Butler

Court Name: Court of Appeals of Texas

Date Published: Nov 22, 1922

Citation: 247 S.W. 611

Docket Number: No. 6824.

Court Abbreviation: Tex. App.