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Docket Number

No. 1532.

Attorney(S)

Kimbrough, Underwood Jackson, of Amarillo, and L. P. Bonner and Harry Mason, both of Vernon, for appellant. Veale Lumpkin, of Amarillo, and Berry, Stokes Morgan, of Vernon, for appellee.

Judges

BOYCE, J.

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Smart Summary

Summary of Opinion: Anders v. California State Life Ins. Co., Court of Civil Appeals of Texas, Amarillo (May 28, 1919)

Factual and Procedural Background

Cleo Gladys Cherry Anders (appellant) sued the California State Life Insurance Company (appellee) to recover the balance claimed due under a life insurance policy issued on the life of William P. Cherry (the insured), naming appellant as beneficiary. The Amarillo National Life Insurance Company originally issued the policy; appellee had assumed its obligations. The policy provided for double indemnity (i.e., double the face amount) if the insured's death resulted solely from accidental bodily injury, but excluded deaths resulting from the insured's violation of law, intoxication, or death by homicide.

William P. Cherry died on February 3, 1916, when a one-room shack in which he had been drinking and gambling burned; his charred body was found in the debris. There was testimony suggesting intoxication and also some testimony tending to indicate a violent blow to the head, but the court did not resolve whether homicide was shown.

The appellant, a minor at her father's death, had competing guardians appointed in Potter and Oldham counties; related suits followed, including a federal suit in Amarillo. In that litigation the appellee admitted liability for the face amount ($3,000) and tendered that sum into court but contested liability for the double indemnity, alleging death from intoxication (and also pleading possible homicide by unknown persons).

While the federal suit was pending, appellant (having just turned 14) married and, with her husband, accepted $2,360.45 from appellee (face amount less premium notes and premiums) and executed a written release of all claims under the policy. Appellant later filed this suit seeking to set aside that release and recover the additional $3,000 under the double indemnity clause, alleging lack of consideration and fraud in procuring the release. The appellee defended on grounds of the release and that death resulted from intoxication (and possibly homicide).

Legal Issues Presented

Whether payment by appellee of the amount admitted to be payable on the policy (the straight insurance) constituted sufficient consideration for the written release as to the disputed double-indemnity portion.
Whether parol evidence was admissible to prove that, as part of the consideration for the release, appellee (through its attorney) agreed to pay the court costs in the pending suits.
Whether the evidence conclusively established that Cherry was burned to death (as opposed to killed) and whether there was sufficient evidence to submit the issues of intoxication-caused death or homicide.
Whether the release was procured by fraud such that it should be set aside.

Arguments of the Parties

Appellant's Arguments

The payment of the admitted policy amount was not sufficient consideration to support a release as to the disputed double-indemnity claim.
Evidence that the company (or its attorney) agreed to pay the court costs was incompetent parol evidence that varied the written release and therefore could not establish consideration.
The evidence established as a matter of law that Cherry was burned to death and did not support submission of issues of intoxication or homicide.
The release was procured by fraud and should be set aside.

Appellee's Arguments

The defendant pleaded and relied upon the settlement and written release executed by appellant and her husband.
The company admitted liability for the $3,000 face amount and tendered that amount into court; it contested liability for the double indemnity on the ground the insured's death occurred in consequence of indulgence in intoxicating drinks (and alternatively alleged homicide by unknown persons).
The appellee (through its attorney) contended that, as part of the consideration for the release, it agreed to pay the court costs in the pending suits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bergman Produce Co. v. Brown, 172 S.W. 557	Cited as authority supporting sufficiency of consideration where payment was made in settlement under comparable circumstances.	Listed among cases that incline the court to view the immediate payment of the face amount as sufficient consideration for the release.
McCormick v. City of St. Louis, 166 Mo. 315, 65 S.W. 1044	Cited as authority supporting the sufficiency of the consideration for a release under similar circumstances.	Cited with other authorities to show support for the proposition that the immediate payment could be sufficient consideration.
Tanner v. Merrill, 108 Mich. 58, 65 N.W. 664, 31 L.R.A. 171, 62 Am.St.Rep. 687	Directly supports sufficiency of the consideration in circumstances like those presented.	Noted as directly sustaining the sufficiency of the consideration, though the court also acknowledges contrary authority.
C., M. S. P. Ry. Co. v. Clarke, 92 F. 968, 35 C.C.A. 120	Cited as a decision criticizing the reasoning of Tanner v. Merrill and as not supported by the best authorities.	Referenced to show that some authorities disagree with Tanner; the court declined to resolve the conflict because another ground disposed of the appeal.
Matheson v. C. B. Livestock Co., 176 S.W. 734	Holds that parol evidence is admissible to add to or vary the statement of consideration in an executed release that operates as a receipt rather than a contract imposing further obligations.	The court relied on this case (and an opinion by Judge Hall) to conclude parol evidence was competent to prove the agreement to pay court costs as part of the consideration for the release.
Womack v. Wamble, 7 Tex. Civ. App. 273, 27 S.W. 154	Support for permitting parol evidence in certain executed release/receipt situations.	Listed among cases supporting admissibility of parol evidence to show additional consideration when the release is an executed receipt.
Moorehead v. Hering, 53 Tex. Civ. App. 605, 116 S.W. 164	Support for the rule permitting parol evidence to show the true consideration for an executed release/receipt.	Relied upon with other Texas cases to sustain the admissibility of parol evidence here.
Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S.W. 149	Another Texas authority cited for admitting parol evidence to supplement an executed release's recital of consideration.	Included among the Texas authorities supporting the court's conclusion that parol evidence was competent.
Rapid Transit Co. v. Smith, 98 Tex. 553, 86 S.W. 322	Held that a written release containing a recital of payment and a promise to pay another sum (an assumption clause) is a written contract not to be varied by parol evidence.	The court distinguished Rapid Transit on the ground that its assumption clause made that release contractual as to the defendant; therefore Rapid Transit did not control the present case.
Equitable Life Association Co. v. Maverick, 78 S.W. 560	Cited in the context of authorities relating to submission of fraud issues.	Referenced among cases concerning whether the evidence warranted submission of a fraud issue; the court stated it was not necessary to decide that question but added its opinion that the evidence was insufficient to require submission.
E. P. S.W. Ry. Co. v. Harry, 37 Tex. Civ. App. 90, 83 S.W. 737	Authority cited on the subject of fraud and submission of such issues to the jury.	Cited with other cases in noting the court did not have to decide whether fraud was sufficiently shown; the court nonetheless found the evidence insufficient to require submission.
Langhman v. Sun Pipe Line Co., 52 Tex. Civ. App. 485, 114 S.W. 45	Another authority on submission of fraud issues.	Cited similarly in the court's treatment of the fraud issue and the refusal to submit the proposed instruction in the form requested by appellant.

Court's Reasoning and Analysis

The court first summarized the operative policy clause (double indemnity for accidental death; exclusions for intoxication, violation of law, and homicide) and the key facts: Cherry's death in a burned shack; intoxication the night before; body found charred beneath bunk springs; some testimony suggested a violent blow to the head.

Procedurally, appellee had tendered the face amount ($3,000) into court in the federal litigation and contested the double-indemnity claim. After appellant married, she and her husband accepted $2,360.45 from appellee (the face less premium notes and premium) and executed a release. Appellant later sued to rescind the release and recover the double indemnity, alleging lack of consideration and fraud. Appellee pleaded the release and defenses of intoxication-caused death and homicide.

The court reviewed the jury's special findings: (1) appellee's attorney Lumpkin agreed, as part of the consideration, that the company would pay the court costs; (2) such costs were thereafter paid; (3) the jury believed Cherry was drunk at the time he was burned; (4) the jury believed his death occurred in consequence of indulgence in intoxicating drinks; and (5) the jury found Cherry met his death either because of intoxication or because he was killed by someone.

On the question whether payment of the face amount was sufficient consideration for the release, the court expressed doubt but observed that the policy was payable as a whole (either $3,000 or $6,000) and there was a bona fide dispute over the larger amount. The court reasoned that, because the $3,000 tendered into the court registry would not have been available for appellant's immediate use pending litigation, and because denial of recovery would leave appellant with no interest on funds and potential taxation of costs, the immediate payment of the $3,000 could be viewed as sufficient consideration. The court cited authorities both supporting and criticizing that position but declined to resolve the conflict because it found another ground dispositive.

The dispositive ground was the admissibility of parol evidence to prove that payment of court costs was part of the consideration for the release. The court held the release was an executed instrument and that its recital of consideration functioned as a receipt rather than creating contractual obligations by the insurer. Under those circumstances the court concluded parol evidence was admissible to add to or vary the recital of consideration. The court relied on Texas authorities (including Matheson v. C. B. Livestock Co. and other cases) for this proposition and distinguished Rapid Transit Co. v. Smith because that release contained an assumption clause making it contractual as to the releasing party.

Given the jury's affirmative finding that Lumpkin (on behalf of the company) agreed to pay the court costs and that such costs were paid, the court concluded that this parol evidence-based finding was sufficient to support the judgment in favor of appellee without deciding the broader authorities on sufficiency of consideration.

As to appellant's requested special issue phrased to ask whether she relied upon certain statements by Lumpkin, the court held the requested issue was improperly framed because it assumed the truth of the statements; therefore refusal to submit it was not error. The court noted there was no assignment complaining of the failure to submit a correct fraud instruction and, in any event, expressed the view that the evidence was not sufficient to require submission of the fraud issue.

Finally, the court found error in that portion of the trial court's judgment that required attorney W. H. Kimbrough to pay one-third of the costs of the appeal; that part of the judgment was set aside.

Holding and Implications

Holding: The court affirmed the trial court's judgment in favor of the appellee on the merits, but set aside the portion of the judgment that required attorney W. H. Kimbrough to pay one-third of the costs of the appeal; the judgment was otherwise AFFIRMED.

Implications:

The written release executed by appellant and her husband was enforceable as to the disputed double-indemnity claim because the jury found (and the court accepted) that additional consideration (payment of court costs) was part of the agreement, and parol evidence was admissible to prove that fact where the release operated as an executed receipt rather than imposing further contractual obligations by the insurer.
The court resolved the case on the parol-evidence/consideration ground and did not make a definitive ruling resolving conflicting authorities on whether the mere immediate payment of the undisputed portion alone would always constitute sufficient consideration; it noted supportive and contrary authorities but declined to decide that conflict.
The court declined to set aside the release on grounds of fraud, concluding the evidence did not require submission of a fraud issue (and the requested issue submitted by appellant was improperly framed).
No new broad precedent was announced beyond the court's application of settled Texas authorities permitting parol evidence to explain or supplement the recital of consideration in an executed release that functions as a receipt; the direct effect was to uphold appellee's settlement and release except for correcting the cost allocation against attorney Kimbrough.

This summary is confined strictly to the matters stated in the provided opinion and does not add information beyond that text.

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ANDERS v. CALIFORNIA STATE LIFE INS. CO.

BOYCE, J.

The appellant, Cleo Gladys Cherry Anders, brought this suit to recover a balance claimed to be due on a life insurance policy issued by the Amarillo National Life Insurance Company, on the life of William P. Cherry, appellant's father, in which the appellant was named as beneficiary. The appellee had assumed all obligations imposed on the Amarillo Life Insurance Company by the terms of said policy. The policy was for the sum of $3,000, but contained this additional clause:

"Or, if, during the continuance of this policy * * * the death of the insured shall result directly and independently and exclusively of all other causes from bodily injuries effected solely through external, violent and accidental means, the sum payable shall be double the sum herein mentioned. However, death occurring in consequence of the insured's violation of law or indulgence in intoxicating drinks, * * * and death from homicide, are not risks assumed by the company under the above clause, and in no case shall such death be regarded as accidental."

The claim of appellant for liquidation of the policy under this clause was the bone of contention in this case. The following statement will be sufficient to an understanding of the issues presented by the present suit and the assignments of error in relation thereto on this appeal.

Said William P. Cherry died on February 3, 1916, while the policy was in force. He was either killed or burned to death, his body being found in the débris of the one-room shack in which he was last seen alive, and which burned in the early morning of said date. On the night before he and some companions had been drinking and gambling in this shack. About midnight the others left Cherry there. He was at the time intoxicated, though not to such an extent as that he was not able to walk about without help, and had just secured a fresh bottle of whisky. The shack was not his regular sleeping place, though there was a bunk in one corner of the room. Nothing was known as to the origin of the fire which destroyed the shack about 6 o'clock in the morning thereafter. Cherry's body was found under the springs which had been on the bunk in the corner of the room. There was some testimony which tended to show that the condition of the charred remains of the body was such as to indicate that the said Cherry had received a violent blow on the head, which might have caused his death, but the disposition we make of the case renders it unnecessary to make any finding as to whether the evidence is such as to have warranted the submission of the issue of homicide.

The appellant was, at the time of the death of the father, a minor, and thereafter the county courts of Potter county and Oldham county, each appointed guardians for her, and each guardian claimed the right to collect the policy. One of the guardians filed a suit on the policy in the district court of Oldham county, and the other guardian filed suit thereon in the federal court at Amarillo. The Oldham county suit was dismissed, and the guardian filing such suit became a party to the suit pending in the federal court, and claimed therein the right to act as guardian in such matter. The appellee answered in that suit, admitting liability for payment of the sum of $3,000 on the policy, which amount, less certain premium notes executed by the deceased, and payable to it, and about which there was no controversy, it tendered into court to be paid to whichever of the claimants might be determined to be entitled thereto. It contested its liability on the double indemnity feature of the contract, however, specially answering that the said Cherry's death occurred in consequence of indulgence in intoxicating drinks. While this suit was pending the appellant, who at that time had just reached the age of 14 years, married Jeff Anders, whereupon she and her husband settled with the appellee, receiving in settlement the amount which the company had tendered as due on the policy, and she, joined by her husband, executed a written release of the policy. This release recited the issuance of the policy, the death of the insured, the pendency of the suit in the federal court, and then proceeded as follows:

"Whereas, the said Cleo Gladys Cherry Anders desires to settle said suit pending in said federal court, and to accept the amount due under said policy, now, therefore, know all men by these presents, that we, Cleo Gladys Cherry Anders, joined by her husband, Jeff Anders, for and in consideration of the sum of $2,360.45, paid by the California State Life Insurance Company, receipt of which is hereby acknowledged, said sum being the face of said policy, less the premium notes and premium due said California State Life Insurance Company, do hereby cancel and release any and all claims and demands that we have against the California State Life Insurance Company, by virtue of said policy, and being the beneficiary therein."

Appellant's mother and stepfather also signed this release in approval thereof. The appellee company offered testimony on the trial of the present suit to the effect that, at the time of the settlement and execution of the release, the company agreed to, and did thereafter, pay the costs of the suit in the federal court, and also the costs of the Oldham county suit. The suit in the federal court was dismissed. Thereafter appellant filed this suit, in which she seeks to set aside the release above referred to, and to recover the further sum of $3,000 on the policy under the double indemnity clause above quoted. She alleged that there was no consideration for the execution of the release, and further that it was secured by fraud on the part of the attorney representing the appellee in the settlement. The defendant in its answer pleaded the settlement and release already referred to, and, also, that it was not liable because the death of the said Cherry occurred in consequence of indulgence in intoxicating drinks. It further pleaded that the death of the said Cherry was the result of homicide by unknown persons.

On the trial of the case special issues were submitted to and answered by the jury as follows:

"(1) Did Lumpkin (the attorney representing appellee in the settlement) agree with the plaintiff and her husband at the time the release testified about was executed, on the 28th day of October, 1916, that he would, or that the company would, as a part of the consideration to the execution of said release, pay the court costs?" Ans. "Yes." "(2) If your answer is `yes' to the last question, then say whether or not he did thereafter pay any such costs." Ans. "Yes." "(3) Was Cherry drunk at the time he was burned?" Ans. "We believe he was drunk." "(4) If you answer `yes' to the last question, then say whether or not the said Cherry's death occurred in consequence of indulgence in intoxicating drinks, if you find there was such indulgence?" Ans. "We believe it did." "(5) Should you find that said Cherry met his death either because of his intoxicated condition, if you find he was intoxicated, or because he was killed by some one, then answer this question by saying `We so find'; and if you do not so find, then answer this question by saying `We do not so find.'" Ans. "We so find."

The objections to the consideration of the first assignment are well taken, but practically the same propositions as to the merits of the cause are presented under the fourth assignment, which is entitled to consideration. Under this assignment the appellant contends that the judgment is contrary to the law and the evidence, because (1) the payment by appellee of the amount admitted to be payable on the policy was not sufficient consideration for the release as to the disputed portion thereof; (2) the evidence offered, to the effect that it was agreed as part of the consideration for the release that the company would pay the court costs in the federal court and in the Oldham county suit, was incompetent as varying the terms of the written release and could not form the basis of a finding of a consideration for such release; (3) the evidence was conclusive that Cherry was burned to death, and there was not sufficient evidence to present an issue as to whether his death was the result of drinking or of homicide.

We have some doubt as to the first proposition so presented by the appellant. If the policy could be said to be liquidated to the extent of $3,000 and unliquidated as to the balance of the claim, so that appellant would be entitled to the immediate payment of the straight insurance and the right to litigate as to the balance, there would seem to be much strength in this position. But the policy is payable as a whole. There was due either $3,000 or $6,000 thereon, and there was a bona fide dispute as to whether the larger amount was due. When appellant filed suit for the $6,000 and appellee tendered the $3,000 into court we know of no procedure by which the $3,000 would be available to appellant's use until the termination of the litigation. In the event she did not prevail in her contention for the double indemnity she would get no interest on the $3,000 deposited in the registry of the court, and would be taxed with the costs of the suit. We are rather inclined to the opinion that the immediate payment of the $3,000 was a sufficient consideration for the release of the claim on the policy. Bergman Produce Co. v. Brown, 172 S.W. 557; McCormick v. City of St. Louis, 166 Mo. 315, 65 S.W. 1044; Tanner v. Merrill, 108 Mich. 58, 65 N.W. 664, 31 L.R.A. 171, 62 Am.St.Rep. 687. The latter case directly sustains the sufficiency of the consideration under the circumstances stated, but other authorities (C., M. S. P. Ry. Co. v. Clarke, 92 F. 968, 35 C.C.A. 120) announce that the decision in this case was not well reasoned and is not supported by the best authorities. We will not ourselves, at this time, attempt a review of the authorities or announce a conclusion as to the question, as our holding on the second proposition is sufficient to a disposition of this phase of the appeal.

We think the parol evidence as to the agreement to pay the costs of the two suits was competent. The release contained no agreement on the part of the insurance company. It was the consummation of an executed contract and the statement of the consideration for the release was in the nature of a receipt or recital of its payment. The release was not, therefore, contractual as to the appellee, and under such circumstances it was permissible to add to or vary its statement of the consideration. Matheson v. C. B. Livestock Co., 176 S.W. 734; Womack v. Wamble, 7 Tex. Civ. App. 273, 27 S.W. 154; Moorehead v. Hering, 53 Tex. Civ. App. 605, 116 S.W. 164; Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S.W. 149. The case of Rapid Transit Co. v. Smith, 98 Tex. 553, 86 S.W. 322, more nearly supports appellant's proposition than any case to which we have been referred. The release in that case recited the payment of a certain sum in cash and "the assumption of Dr. Gauldin's bill," and it was held by the Supreme Court that the release "being a written contract, containing the recital of the payment of one sum and the promise to pay another as a consideration, was not subject to be varied or contradicted by parol evidence." We think the assumption clause of that contract distinguishes the release from the one we are considering. Such clause made that release contractual as to the railway company. An extended review of the authorities on this subject will be found in an opinion written by Judge Hall of this court, in the case of Matheson v. C. B. Livestock Company, supra, and we refer to the opinion in that case in lieu of a further discussion of the question. We conclude, therefore, that the answer of the jury to the first issue submitted, the pleading and evidence being sufficient to present the issue, is alone sufficient to support the judgment in favor of the appellee.

It is not necessary to consider other questions except those presented by the sixth and seventh assignments, as the ruling just announced would result in an affirmance of the case no matter what our conclusions on such other questions might be.

The sixth assignment complains of te refusal of the court to submit the following requested issue:

"Did the plaintiff believe and rely upon the statement made by defendant's attorney Lumpkin to the effect that the settlement she was making was a good one; that he was paying her all that she could recover, and if the suit continued she might not get anything; that he had plenty of proof that the deceased was drunk at the time of his death and that drunkenness killed any insurance policy?"

It would have been error to have submitted this issue in this language, because it assumed that the statements therein referred to were made, when the evidence is by no means conclusive as to such matter. The assignment must therefore, for this reason, if for no other, be overruled. There is no assignment complaining of the action of the court in refusing to submit a correct instruction on the issue of fraud, and it is not necessary for us to decide whether the evidence is sufficient to raise such issue. Equitable Life Association Co. v. Maverick, 78 S.W. 560; E. P. S.W. Ry. Co. v. Harry, 37 Tex. Civ. App. 90, 83 S.W. 737; Langhman v. Sun Pipe Line Co., 52 Tex. Civ. App. 485, 114 S.W. 45. We will add, however, that in our opinion the evidence was not sufficient to require a submission of the issue of fraud.

The court was in error in attempting to adjudge that the attorney, W. H. Kimbrough, should pay one-third of the costs of this appeal. That part of the judgment will be set aside, and the judgment will be otherwise affirmed.

ANDERS v. CALIF. STATE LIFE INS