The Homesteaders v. Stapp

11 Citing cases

  1. Southern Farm Bureau Cas. Ins. Co. v. Allen

    388 F.2d 126 (5th Cir. 1967)   Cited 14 times

    50 S.W. 569, 572; Missouri, K. T. Ry. Co. v. Belcher, 1895, 88 Tex. 549, 32 S.W. 518, 519; Lee v. Mutual Protective Ass'n, Tex.Civ. App. 1932, 47 S.W.2d 402, 406, writ dism'd, Tex.Com.App., 65 S.W.2d 271. Two conditions are necessary for the application of this rule, however: (1) The agent must be acting within the scope of his authority and in reference to a matter over which his authority extends, e.g., United Federal Life Ins. Co. v. Cloud, Tex.Civ.App. 1963, 370 S.W.2d 147, no writ; Washington Nat. Ins. Co. v. Brock, Tex.Civ.App. 1933, 60 S.W.2d 861, writ ref'd; American Nat. Ins. Co. v. Park, Tex.Civ.App. 1932, 55 S.W.2d 1088, writ ref'd; and (2) the insured (or applicant) must not be involved with the agent, even informally, in perpetrating a fraud against the insurer, e.g., Wichita Falls Protective Ass'n v. Lewis, Tex.Civ.App. 1932, 52 S.W.2d 134, no writ; Judd v. Lubbock Mutual Aid Ass'n, Tex.Civ.App. 1925, 269 S.W. 284, no writ; The Homesteaders v. Stapp, Tex.Civ.App. 1918, 205 S.W. 743, writ ref'd. The Texas cases are clear that if these conditions do not exist, then the insurance company is not estopped from avoiding its policy.

  2. Pacific Mut. Life Ins. Co. v. Cunningham

    54 F.2d 927 (S.D. Fla. 1932)   Cited 7 times

    Mere temporary or inconsequential indisposition, which does not materially tend to impair health, nor to interfere with the subject's ordinary duties, is not regarded in law as an "illness." Manhattan L. Ins. Co. v. Francisco, 17 Wall. (84 U.S.) 672, 21 L. Ed. 698; Metropolitan Life Ins. Co. v. Brubaker, 78 Kan. 146, 96 P. 62, 64, 18 L.R.A. (N.S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267; Prudential Life Ins. Co. v. Sellers, 54 Ind. App. 326, 102 N.E. 894; Cole v. Mutual Life Ins. Co., 129 La. 704, 56 So. 645, Ann. Cas. 1913B, 748; The Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743; New York L. Ins. Co. v. Moats (C.C.A.) 207 F. 481; Miller v. Maryland Cas. Co. (C.C.A.) 193 F. 343; McClain v. Provident Sav. L. Assur. Soc. (C.C.A.) 110 F. 80; Billings v. Metropolitan L. Ins. Co., 70 Vt. 477, 41 A. 516, 518; Gruber v. German Aid Soc., 113 Minn. 340, 129 N.W. 581; Schofield's Adm'x v. Metropolitan Life, 79 Vt. 161, 64 A. 1107, 8 Ann. Cas. 1152; National L.S. Ins. Co. v. Bartlow, 60 Ind. App. 233, 110 N.E. 224. Thus, in Northwestern Mutual Life Ins. Co. v. Wiggins (C.C.A.) 15 F.2d 646, it was held that an impoverishment or thinness of the blood, thought by insured to be due to the extraction of the teeth, and undisclosed by the insured in his application, was not such a misrepresentation as would avoid the policy, though insured in fact suffered from myelogenous leukemia, a fatal diseases, which ultimately caused his death, assured being ignorant that he suffered from the said disease, but had taken X-ray treatments upon the advice of his physician.

  3. Odom v. Insurance Company of State of Penn

    455 S.W.2d 195 (Tex. 1970)   Cited 30 times
    Holding statements made by insured in application for automobile liability insurance, attached to and made a part of the policy, created warranties and insured was bound by misstatements in application

    The same is true of the following cases, which we have found to be in accord with Schumann: Equitable Life Assur. Soc. v. Hazelwood, 75 Tex. 338, 12 S.W. 621 (1889); The Homesteaders v. Stapp, 205 S.W. 743 (Tex.Civ.App. 1918) error refused; and American Nat. Ins. Co. v. Park, 55 S.W.2d 1088 (Tex.Civ.App. 1932) error refused. The case of Washington National Ins. Co. v. Brock, 60 S.W.2d 861 (Tex.Civ.App. 1933) error refused, did extend the rule announced in the Schumann case to a factual situation where the insured was given a copy of the application for insurance, and did therefore have an opportunity to read it and find that the information he had given to the insurance agent in question had not been correctly transcribed and that as a result some of the answers were false.

  4. Braddock, by Smith v. Pacific Woodmen Life Assn

    89 Utah 75 (Utah 1936)   Cited 5 times

    7, 8 Mere temporary ailments or indispositions not of a serious or dangerous character which leave no trace on the constitution or affect the soundness of the system are not regarded as diseases. Penn Mut. Life Ins. Co. v. Mechanics' Sav. Bank Trust Co., 72 F. 413, 19 C.C.A. 286, 37 U.S. App. 692, 38 L.R.A. 33, rehearing denied 73 F. 653, 19 C.C.A. 316, 43 U.S. App. 75, 38 L.R.A. 70; Metropolitan Life Ins. Co. v. Brubaker, 78 Kan. 146, 96 P. 62, 18 L.R.A. (N.S.) 362, 130 Am. St. Rep. 356, 16 Ann. Cas. 267; The Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743. So, likewise, the words "bodily infirmity" are restricted to anything that materially impairs, weakens, or undermines the constitution of the assured, tends to reduce his powers of resistance and thereby enhances the risk of death. Eastern Dist. Piece Dye Works v. Travelers' Ins. Co., 234 N.Y. 441, 138 N.E. 401, 26 A.L.R. 1505, and Druhl v. Equitable Life Assur.

  5. W. O. W. Life Ins. Soc. v. Dickson

    133 S.W.2d 243 (Tex. Civ. App. 1939)   Cited 2 times

    We think that a reasonable construction should be placed upon such a question as viewed from the layman's point of view and that it should be read in its plain, ordinary, and natural signification and should not be so construed as to lead to an absurdity or to defeat justice and right and, therefore, in our opinion a routine examination which discloses no disease or injury or which does not require treatment for any disease or injury should not as a matter of law be regarded as a consultation with a physician "for any disease or injury." We believe that such reasonable construction is borne out by the following cases: The Homesteaders v. Stapp, Tex. Civ. App. 205 S.W. 743; Winn v. Modern Woodmen of America, 157 Mo. App. 1, 137 S.W. 292; Elliott v. Grand Lodge Brotherhood of Railway Trainmen, 231 Mo. App. 49, 95 S.W.2d 829; 45 C.J. 85; National Americans v. Ritch, 121 Ark. 185, 180 S.W. 488. Since issue No. 15 was submitted in conjunction with issue No. 16 to which the jury answered that such consultation was for the purpose of ascertaining the physical fitness of deceased for employment as a bus driver and since the jury was instructed that if they had answered issue No. 15 "yes", then they would answer issue No. 16, whereby their answer to one may have influenced the other, we cannot consider it proper to ignore issue No. 16 and its answer and to make disposition of the case solely on issue No. 15 and its answer; and, therefore, in the interest of justice, we consider it proper to reverse and remand the case.

  6. Sovereign Camp, W. O. W. v. Derrick

    64 S.W.2d 982 (Tex. Civ. App. 1933)   Cited 6 times

    Dr. Wood was not willing to say Mr. Derrick had more than sarcoma when he first examined him on November 3d, and only pronounced the disease melano sarcoma upon a later examination. Woodmen of the World v. Locklin, 28 Tex. Civ. App. 486, 67 S.W. 331; The Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743; American National Insurance Co. v. McKellar (Tex.Civ.App.) 295 S.W. 628; and Vann v. National Life Accident Insurance Co. (Tex.Com.App.) 24 S.W.2d 347. While the trial court, under the evidence, might have been warranted in rendering a judgment in favor of appellant, and had he done so we probably would not have felt inclined to disturb the same, yet, we are unable to say that the only reasonable conclusion that could be drawn from the evidence would result in such a judgment, nor are we prepared to hold that the judgment as rendered is so contrary to the evidence as to render it manifestly wrong and unjust.

  7. Dalton v. Realty Trust Co.

    13 S.W.2d 398 (Tex. Civ. App. 1929)

    H. T. C. Ry. Co. v. Shults (Tex.Civ.App.) 90 S.W. 506; Chicago, R. I. G. Ry. Co. v. Howell (Tex.Civ.App.) 166 S.W. 81; Texas-Mexican Ry. Co. v. Sutherland (Tex.Civ.App.) 189 S.W. 983; The Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743; Provident Life Accident Ins. Co. v. Johnson (Tex.Civ.App.) 235 S.W. 650, and authorities cited. The judgment obtained by appellee is excessive in the sum of $37.66 2/3, together with interest thereon at the rate of 8 per cent. per annum; and if appellee will file a remittitur of this amount in 15 days, the judgment will be affirmed; otherwise, it is reversed and remanded.

  8. Perkins v. Lightfoot

    10 S.W.2d 1030 (Tex. Civ. App. 1928)   Cited 9 times

    Recovery in this suit to the amount of $1,875 was claimed by reason of the con version of this particular 25 bales. There is no pleading in the case calling for an issue as to 43 bales of cotton, and it is fundamental error for the court to in any measure rest a judgment upon the jury's answer thereto Payne v. Godfrey, 61 Tex. Civ. App. 40, 129 S.W. 163; Co-operative Canal Co. v. Gray (Tex.Civ.App.) 184 S.W. 242; Evants v. Erdman (Tex.Civ.App.) 153 S.W. 929; San Antonio Traction Co. v. Yost, 39 Tex. Civ. App. 551, 88 S.W. 428; Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743; Sivalls Motor Co. v. Chastain (Tex.Civ.App.) 5 S.W.2d 185. It must further be remarked upon this phase of the case that the vice of the issue further appears, in that it authorized a jury to consider the value of the 43 bales of cotton and carry the same into the aggregate of their verdict.

  9. Sivalls Motor Co. v. Chastain

    5 S.W.2d 185 (Tex. Civ. App. 1928)   Cited 11 times

    If this be true, then it is not of much consequence that the point cannot be raised as an objection to the submission of special issues or instructions to the jury as such, since we are required to notice it as a fundamental error in the judgment itself. That it is fundamental error to predicate a judgment upon a verdict upon issues not made by the pleadings has been settled by ample authority, of which the following may be cited: Indiana Co-operative Canal Co. v. Gray (Tex.Civ.App.) 184 S.W. 242; Evants v Erdman (Tex.Civ.App.) 153 S.W. 929; San Antonio Traction Co. v. Yost (Tex.Civ.App.) 88 S.W. 428; The Homesteaders v. Stapp (Tex.Civ.App.) 205 S.W. 743. Because, therefore, the judgment in this case has its sole support upon findings of the jury that have no basis in the pleading, the cause must be reversed and remanded for a new trial.

  10. Sovereign Camp, Woodmen of World v. Nash

    220 S.W. 235 (Tex. Civ. App. 1920)   Cited 2 times

    The provision in the laws of appellant, that no officer of the Sovereign Camp shall have the power of waiver, is not authorized by the statute. Knowledge acquired by the officers of the Sovereign Camp and communicated to their principal would bind it. The Homesteaders v. Stapp, 205 S.W. 743. If a false representation as to former sickness or present condition was made by deceased, appellant knew it, because the application and medical certificate fully disclosed it, and appellant is not acting in good faith when it seeks to destroy its contract, made with full knowledge of all the facts.