Texas Mutual Life Insurance v. Davidge
Texas Mutual Life Insurance v. Davidge
Opinion of the Court
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
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.
Reference
- Full Case Name
- Texas Mutual Life Insurance Co. v. Martha E. Davidge
- Cited By
- 17 cases
- Status
- Published
- Syllabus
- 1. Pleadings—Consideration.—A petition seeking to recover on a policy of insurance, is insufficient on demurrer unless it allege a consideration supporting the policy sued on. 2. Venue—Corporation.—A suit against an incorporated company in a county other than where its principal office is, should distinctly allege that it is an incorporated company. The description of it as the “Texas Mutual Insurance Company” is insufficient. 3. Consideration of policy—Power of agent.—It was error to exclude testimony showing that the act of an agent of an insurance company, in agreeing to accept payment of a premium otherwise than in money, was beyond the scope of his authority. 4. Beceipt for money.—Tiie receipt for the premium recited in a policy of insurance, is subject to explanation, and may, as other receipts, be contradicted by parol testimony. 5. False or fraudulent.—In an action on a policy of insurance, the plea being false representations in obtaining it: Held, A charge that, to avoid the policy, the misrepresentations must be found false and fraudulent, was erroneous, when the stipulations in the policy were to avoid it if the representations were false or fraudulent. 0. Pleading—Avoidance—Drunkenness.—In a suit on an insurance policy, a plea of misrepresentation as to habits as to drunkenness on the part of assured: Held, That evidence, in reply, that the drunkenness of the assured was known to the agent of the company, could not be introduced in absence of replication setting it up.