Lone Star Ins. Union v. Brannan , 1916 Tex. App. LEXIS 342 ( 1916 )

MOURSUND, J.

Robert Brannan sued appellant upon an insurance policy for $1,000, issued to his deceased wife, Marguerite Bran-nan, alleging that she had in all respects complied with the conditions and provisions of same, and that due notice of her death had been given, and in the alternative, if it should be found that Mrs. Brannan had not complied with the conditions and provisions of the policy, that such noncompliance was waived by appellant; the acts relied upon as •showing waiver being fully pleaded. Appellant put in issue all the material allegations of the petition, and specially pleaded that Mrs. Brannan had not paid assessment No. 103, due by her, within the time prescribed by its constitution anil by-laws, and therefore she had forfeited her membership and her policy, and specially denied that it had waived any provisions of the constitution or bylaws.

The case was submitted upon special issues, which, with their answers, are as follows:

“Question No. 1. Was the course of dealing on the part of the defendant with the insured, Marguerite Brannan, with respect to the payment of the assessment on account of the policy sued upon, such as were reasonably calculated to, and did actually, induce the said Marguerite Brannan to believe that the strict performance of the terms of the policy with regard to the prompt payment of assessments would not be insisted upon or required by the defendant, and that payment of delinquent premiums would be received by the defendant within a reasonable time after default and with the understanding between said parties that the contract would not, on such account, lapse or become forfeited? Answer: ‘Yes.’

“Question No. 2. If you answer the foregoing question, ‘Yes,’ then, was the failure to pay, prior to her death, the premium on said policy, induced and caused by such prior course of dealing, if any, which may have existed between said parties (if any such course of dealing did exist)? Answer: ‘Yes.’

“Question No. 3. Considering such course of conduct, if any, was the tender, shown by the evidence to have been made by the plaintiff to Joe Murray, made within a reasonable time after the notice of assessment for which such tender was made? Answer: ‘Yes.’

“Question No. 4. The policy of insurance sued upon contains the following provision: ‘Should a suspended member personally appear and apply for reinstatement within three months from the date of his suspension, and pay all arrear-ages, if in good health, he shall be restored to membership and his policy again become valid as soon as said payment shall have been received and recorded by the clerk of his division.’ Were the delinquent payments which the evidence shows to have been paid by or for the insured and received by Joe Murray received by said Murray (a) as payment of original assessments without reference to the clause above quoted, or (b) were such payments received by Joe Murray for the purpose of reinstatement under the stipulations in said policy, above quoted? Answer: Delinquent payments paid by or for plaintiff were received by Joe Murray (a) as payment of original assessments without reference to the clause quoted.

“Question No. 5. In case you have found, in answer to the preceding question, that said delinquent payments were received by Joe Murray as original payments and not under the authority of the provisions of the policy quoted' in the preceding question, then, you will answer whether or not Worth Duncan, general manager of the defendant, knew that said Murray was so receiving sucii payments (if you find he did so receive the same). Answer: ‘He did.’ ”

Judgment was entered upon the verdict for plaintiff for $1,131.16.

[1] Appellant does not question the sufficiency of the evidence to sustain the findings of the jury, but by two assignments presents the sole contention that the evidence shows that Joe Murray was merely its local collector without power to waive any of the provisions or conditions contained in the policy. This proposition may be conceded to be correct, and was doubtless conceded by the trial court, for an issue was submitted whether the general manager of appellant knew of Murray’s transactions with regard to receiving payment of delinquent assessments. This issue was decided against appellant, and the finding is not attacked. As the' general manager knew of and permitted the business to be conducted by Murray in the manner relied upon as waiving the provisions of the policy, it appears that the question of Murray’s authority is not material.

No other question having been raised, the judgment is affirmed.

<@=^]Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes