Texas Mutual Life Insurance v. Davidge, 51 Tex. 244

Texas Mutual Life Insurance v. Davidge

51 Tex. 244 | Tex. | 1879

Gould, Associate Justice.

The court erred in overruling the demurrer to appellee’s petition: 1st. Because the petition failed to allege any consideration supporting the policy of insurance sued on. (1 Chit. Pl., 262; Gould’s Pl., sec. 27, p. 169; Jones v. Holliday, 11 Tex., 414.) 2d. Because the petition does not allege the corporate capacity of defendant, or otherwise state the party defendant. The description of the defendant as the “ Texas Mutual Life Insurance Company” raises no presumption that it was an incorporated company. (Paschal’s Dig., art. 1427; Briggs v. McCullough, 36 Cal., 542.)

The court also erred in refusing to admit evidence that the agent had agreed to take as an equivalent for the first pre*250mium his own board bill due to Davidge, and in excluding all parol evidence inrpeaching the consideration of the policy, and that the agent had acted outside the scope of his authority in accepting anything but a cash payment. The delivery of the policy with the indorsement upon it amounted to no more than a receipt for the first premium, and that receipt, as in other cases of receipts, was subject to be contradicted or explained by parol evidence. (Stachely v. Peirce, 28 Tex., 335; Bliss on Life Ins., sec. 376, and authorities cited.)

There was nothing in the delivery of the policy precluding an investigation of the truth of the plea impeaching its consideration and denying the payment of the first premium, and evidence was admissible as to the manner in which that premium was paid to the agent and the extent of his authority in receiving payments.

The charge of the court was objectionable, in that the defense of misrepresentation by the assured was not permitted to defeat the recovery unless it was both false and fraudulent. The special charge asked and refused was a more correct statement of the law. (Bliss on Life Ins., sec. 47, and authorities cited.)

If, as an answer to the defense of misrepresentation by the assured as to his habits of temperance, the plaintiff seeks to establish that those habits were known to the agent who acted for the company in negotiating the contract, that knowledge should have been pleaded in reply to the defense. (Texas Banking and Insurance Co. v. Stone, 49 Tex., 5.)

The judgment is reversed and the cause remanded.

Reversed and remanded.