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2. INSURANCE O 448 – LIFE INSURANCE-1 suit was issued by the Royal Indemnity Com

OM MURDER OF INSURED BY BENEFICIARY-CAN-fpany on the 4th day of December, 1914, and CELLATION OF LIABILITY.

A life insurance company's liability on a was in full force and effect at the time of the policy is not canceled because the beneficiary death of said R. H. Murchison. It was furnamed in the policy feloniously kills the insured. ther shown by the petition of plaintiffs that 3. PROPERTY 4-LIFE INSURANCE – PRO- said policy provided that upon the death of CEEDS AS PERSONALTY.

said R. H. Murchison, the proceeds thereof The proceeds of a life insurance policy is in the nature of, or constitutes, personal prop- should be paid to the said Margurite Murerty.

chison as sole beneficiary. It was further 4. DESCENT AND DISTRIBUTION Om51–PRO- alleged in the petition that the said R. H. CEEDS OF INSURANCE-CAUSING DEATH OF Murchison met his death at the hands of his INTESTATE. Under Vernon's Sayles’ Ann. Civ. St. 1914. said wife, Margurite Murchison, who feloni

. art. 2465, providing that no conviction shall ously killed and murdered him with the inwork corruption of blood or forfeiture of es- tention and for the purpose of securing and tate, and that there shall be no forfeiture obtaining the money which it was provided by reason of death by casualty, and article 2462, by the terms of said policy should be paid to providing that in the absence of any child or children or their descendants, the whole of the her upon the death of said R. H. Murchison. personal estate of one dying intestate shall pass It was then alleged, substantially, that to his surviving wife, where a wife, the bene- because of the fact that the said Margurite ficiary of her husband's life insurance policy, Murchison did feloniously kill and murder feloniously killed such husband, who died intestate and without children, to accelerate the the said R. H. Murchison, she forfeited due date of the policy and obtain the insurance all right and interest that she otherwise money, the liability of the insurance company might have had in and to the proceeds of to the husband's estate not being canceled, and the proceeds of the policy being personalty, the said policy of insurance as the beneficiary wife was entitled to them.

named therein; and, further, it was subAppeal from District Court, Angelina stantially alleged that because of the fact County; L. D. Guinn, Judge.

that the said Margurite Murchison feloniousSuit by G. R. Murchison and others against ly killed and murdered said R. H. Murchison, Margurite Murchison and another.

she was not only prevented from claiming

From judgment of dismissal, plaintiffs appeal. Af- and recovering from the Royal Indemnity firmed.

Company the amount of money stipulated to

be paid her as beneficiary in said policy, but Mantooth & Collins, of Lufkin, for plain- also that she thereby forfeited any and all tiffs in error. Denman & Thomas and I. D. right and interest in and to the proceeds of Fairchild, both of Lufkin, Blount & Strong, said policy in the hands of said Royal Inof Nacogdoches, and W. J. Townsend, of demnity Company, and was not, in law, entiAustin, for defendants in error.

tled to have said proceeds or any part thereHIGHTOWER, C. J. This suit was filed of this state, but that plaintiffs, as the father,

of under the law of descent and distribution in the district court of Angelina county by of this state, but that plaintiffs, as the father, G. R. Murchison, Dailey Murchison, Ross brothers, and sister of said R. H. Murchison, Murchison, Jr., and Dora Faris, the latter by reason of such relationship to him, imbeing joined pro forma by her husband, W. B. mediately upon the death of said R. H. MurFaris, as plaintiffs, against Margurite Murchison became and were entitled to recover chison and Royal Indemnity Company as de- of said Royal Indemnity Company the profendants; the purpose of the suit being to ceeds of said policy still in its hands, as the recover a judgment against the Royal Indem- heirs and next of kin of the said R. H. Murnity Company on a policy of accident insur- chison. The petition is quite lengthy, and ance issued by said company upon the life of for the purposes of this opinion it is entirely one R. H. Murchison.

unnecessary to quote the same in full, and we It was alleged in the petition that G. R. think that the foregoing substantial stateMurchison was the father, and Dailey Mur- ment of the material allegations will be sufchison and Ross Murchison, Jr., were the ficient for the disposition here. brothers, and said Dora Faris the sister, of

Both the defendants were served and anthe said R. H. Murchison, who, it was alleg- swered, and each interposed a general demured, died on the 14th of April, 1915; and it rer to the plaintiffs' petition, and also each was further alleged that the said Margurite interposed certain special exceptions, which Murchison was the wife of said R. H. Mur- it is unnecessary to here mention. The trial chison at the time of his death. It was court sustained the general demurrer interfurther alleged that the said R. H. Murchison posed by each of the defendants, and some of left no outstanding debts at the time of his the special exceptions, and the plaintiffs havdeath, and that there was never any admin- ing declined to amend, their petition was istration upon his estate, nor any necessity ordered dismissed, and from that order and for any. It was further alleged that the said judgment of the trial court this appeal has R. H. Murchison left no child or children sur- been prosecuted. viving him. It was further alleged that the [1] The action of the trial court in sustainpolicy of insurance made the basis of the ling the general demurrers of defendants has been duly assigned as error in this court, j us to subscribe to the doctrine that to permit and such assignments and propositions there a beneficiary in any character of insurance under raise two questions only for the con- policy to recover life insurance money upon sideration of this court. The first question is the contract itself, after having feloniously this: Can one who is named as sole bene- killed the insured with the intention and for ficiary in a life insurance policy, and who the purpose of accelerating the due date of feloniously kills the insured for the purpose such policy and obtaining possession of such and with the intention of accelerating the money, would not be against the public policy due date of such policy and collecting the of this state, regardless of what the public money to be paid to such beneficiary there- policy of some other states may be, as deunder, recover the proceeds of such policy clared by their courts. against the company issuing same, in accord- It is the contention of appellees in this case ance with the provisions of the policy? In that because article 1, section 21, of the Conother words, can such beneficiary, under such stitution of this state provides that "no concircumstances, recover upon the contract of viction shall work forfeiture of estate," and insurance? The Supreme Court of this state because article 2465 of the Revised Statutes has never decided this question, in so far as of this state provides, substantially, the

, we have been able to ascertain, but we are same, it should be held by this court that the not left in the dark in the matter, because people of this state, both by their representawe find that no less eminent authority than tives in the constitutional convention and in the Supreme Court of the United States long the legislative halls, have declared the pubago decided this very question, and the opin- lic policy of this state to be in favor of perion of that great court will be found in the mitting such a beneficiary to recover upon the case of New York Mut. Life Ins. Co. V. Arm- terms of the contract of insurance. We canstrong, 117 U. S. 600, 6 Sup. Ot. 881, 29 L. Ed. not accept the correctness of this contention 1000. In that case we find this expression by counsel. We therefore hold that if the in the opinion of the court:

right of Margurite Murchison to the proceeds “It would be a reproach to the jurisprudence of the policy in question depended upon the of the country, if one could recover insurance provisions of the policy itself, as a contract, money payable on the death of a party whose then we would be compelled to hold, and life he had feloniously taken.

might he recover insurance money upon a building without any reluctance whatever, that the that he had willfully fired."

trial court was in error in sustaining the genIt has been a long time, it is true, since the eral demurrer of either of the appellees. Supreme Court of the United States used the [2-4] The second question, however, for language just quoted, but in all the years determination, in legal contemplation is this: since then that court seems never to have Assuming the truth of the allegation in plainchanged its views on the question. Innumer- tiffs' petition, to the effect that Margurite able cases from that court might be cited, Murchison feloniously killed and murdered more or less relevant on the point, but it R. H. Murchison for the purpose of sooner would serve no useful purpose to here men- obtaining the insurance money on his life, tion them, because a decision of the question did that fact deprive her of the right as a could not be more squarely made by any surviving wife to take the proceeds of the polcourt, nor could stronger or sounder reason icy after his death, as against the father, than is there announced be found. See, also, brothers, and sister of R. H. Murchison, the Schmidt v. Life Ins. Association, 112 Iowa, latter having left no child or children? This 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. question necessitates a consideration of sevRep. 323; Filmore v. Life Ins. Co., 82 Ohio eral articles of our statutes on the subject St. 208, 92 N. E. 26, 28 L. R. A. (N. S.) 675, of descent and distribution: 137 Am. St. Rep. 778; Anderson v. Life Ins.

Article 2465, Vernon's Statutes, provides: Co., 152 N. C. 1, 67 S. E. 53; Supreme Lodge "No conviction shall work corruption of blood V. Menkhausen, 209 Ill. 277, 70 N. E. 567, or forfeiture of estate, nor shall there be any 65 L. R. A. 508, 101 Am. St. Rep. 239; Order forfeiture by reason of death by casualty.

* * " of Columbus v. Fuqua, 60 S. W. 1020; Life

Article 2469 provides: Ins. Co. v. Shane, 98 Ark, 132, 135 S. W. 837. These are but a few of the authorities which tion by death, all property belonging to the

“Upon the dissolution of the marriage relaannounce the rule that it would be against community estate of the husband and wife sound public policy to permit any beneficiary shall go to the survivor, if there be no child in a life insurance policy, who should feloni- or children of the deceased or their descendants ; ously take the life of the insured, to recover but if there be a child or children of the de

ceased, or descendants of such child or children, money due under the terms of the policy; then the survivor shall be entitled to one-half of and without discussing the question further, said property, and the other half shall pass to this court is perfectly satisfied with the rule such child or children, or their descendants. as announced in those cases, and in so far as this court is concerned, nothing short of an

Article 2462 provides: express and unmistakable declaration in the "Where any person having title to any estate Constitution or statutory law of this state, or intestate as to such estate, and shall leave a

or inheritance, real, personal or mixed, shall die a decision necessary upon the very point by surviving husband or wife,' the estate of such the Supreme Court of this state, would cause intestate shall descend and pass as follows:

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"1. If the deceased have a child or children, or if it has, that it has failed to correct this their descendants, the surviving husband or great injustice, as it seems to us, still, in, wife, shall take one-third of the personal estate, and the balance of such personal estate shall view of the plain provision of the statute go to the child or children of the deceased and quoted, and what seems to us to be an untheir descendants. The surviving husband or broken line of decisions by courts of last rewife shall also be entitled to an estate for life, sort in other states on the question, we are in one-third of the land of the intestate, with remainder to the child or children of the intes- constrained to hold that Margurite Murchitate and their descendants.

son, even though she did feloniously take "2. If the deceased have no child or children, the life of her husband for the purpose of or their descendants, then the surviving husband or wife shall be entitled to all the personal sooner collecting the insurance money upon estate, and to one-half of the lands of the intes- his life, did not forfeit her right thereto, as tate, without remainder to any person, and cast upon her by the statutory law of this the other half shall pass and be inherited, ac- state. Hill v. Noland, 149 S. W. 288; Owens cording to the rules of descent and distribution: Provided, however, that if the deceased have v. Owens, 100 N. C. 246, 6 S. E. 794; Carpenneither surviving father nor mother, nor sur-ter's Estate, 170 Pa. 203, 32 Atl. 637, 29 L. viving brothers and sisters, or their descendants, R. A. 145, 50 Am. St. Rep. 765; Shellenberger then the surviving husband or wife shall be entitled to the whole of the estate of such intes- v. Ransom, 41 Neb. 631, 59 N. W. 935, 25 tate."

L. R. A, 564; McAllister v. Fair, 72 Kan. 533,

84 Pac. 112, 3 L. R. A. (N. S.) 726, 115 Am. It is conceded by both parties to this ap- St. Rep. 233, 7 Ann. Cas. 973. peal that the insurance company's liability

Having reached the conclusion that the apon the policy in question would not be can- pellee Margurite Murchison, upon the death celed because of the fact that Margurite of R. H. Murchison, became entitled to the Murchison, the beneficiary named in the poli-whole of the personal estate left by him, cy in question, feloniously killed R. H. to the exclusion of the appellants herein, it Murchison, the insured, and such is the law; necessarily follows that there was no error and it is further conceded and is the law

on the part of the trial court in sustaining that the proceeds of the insurance policy in the general demurrer interposed by each of question is in the nature of personal prop- the appellees and its judgment is therefore erty, or constitute personal property. There

affirmed. fore, since R. H. Murchison died intestate, as disclosed by the petition, and since it is

KING, J., not sitting. the law that the liability of the insurance company was not canceled, even if the beneficiary, Margurite Murchison, did murder the insured, R. H. Murchison, but since, as DURFEE v. CRAWFORD et al. (No. 352.) we hold, Margurite Murchison, by reason of (Court of Civil Appeals of Texas. Beaumont. her felonious act in taking the life of her April 25, 1918. Rehearing Denied

May 8, 1918.) husband, deprived herself of taking the proceeds of this policy as the beneficiary nam

JUDGMENT C 456(1)-SETTING ASIDE-TIME

TO ACT. ed therein, then the proceeds of this policy

Where attorney for several plaintiffs omitbecame payable, under the law, to the es- ted one of them from the amended petition and tate of R. H. Murchison. And since, by ar- abandoned her without her knowledge, she could ticle 2462 above, in the absence of any child not have the judgment set aside in equity after

the expiration of the term of its rendition, if or children of R. H. Murchison, or their de- she had knowledge of the judgment before the scendants, the whole of the personal estate expiration of such term, in the absence of fraud of R. H. Murchison passed to his surviving of adverse parties. wife, Margurite Murchison, she became en- Appeal from District Court, Harris Countitled to the same under the statute itself to ty; Wm. Masterson, Judge. the exclusion of the appellants in this case. Suit by Sophie Durfee against Duke Craw

It seems to be held by the courts in all the ford and others. Judgment for defendants, states that where a statute of descent and and plaintiff appeals. Affirmed. distribution is plain and unambiguous in Stanley Thompson, of Houston, for appelprescribing how property shall descend and lant.

Barkley & Weems, of Houston, for vest upon the death of its owner, such stat

appellees. ute must be given effect by the courts, regardless of the fact that the death of the

BROOKE, J. This is a suit begun in the owner was intentionally caused by one to district court of Harris county in the Fiftywhom, under the statute, his property is Fifth judicial district of Texas by appelmade to descend and vest, and there can be lant, Sophie Durfee, in an equitable proceedno doubt that article 2462 is plain and posi- ing brought by her for the purpose of settive, and leaves nothing for construction by ting aside a judgment in cause numbered 64,the courts as to how property of a decedent 963 on the docket of said court, which said shall descend and vest in this state; and suit was styled Rosa Davis and Sophie Durwhile it is to be regretted that the Legisla- fee v. Duke Crawford, Sr., and Duke Crawture of this state has never discovered, or ford, Jr. The petition alleged, among other

things, that the attorney acting for the said | management of the original cause, not involving Sophie Durfee, plaintiff in said suit, without actual fraud. The character of the act or negthe knowledge of plaintiff, abandoned her in- inattention to the business intrusted to him, or

lect is not material. It may consist of entire terest in said suit, and by an amended peti- his failure to appear and plead at the trial, or tion left her out of the case, and that she had his procuring witnesses or other evidence, or of no representatives of her interest after said any error in the judgment with respect to the amended petition was filed in said suit, and pleadings, the evidence, or other material mat

. that when the judgment was rendered in said all such cases no relief can be obtained in cause No. 64963, Sophie Durfee had no rep-equity. * * * In this case the conclusion resentatives and no pleadings in court to cannot be escaped that the mistake in the judglook after her interests, and prosecute her of the negligence of the appellee, or of negli

ment sought to be corrected is the direct result rights to said property, and that without her gence with which it is chargeable. No diligence knowledge or authority, and in her absence, whatever is shown to discover the mistake after on the 3d day of January, 1916, there was it became known to appellee. If it was dis

the judgment was entered, nor is it shown when entered of record in said cause a judgment covered before the court adjourned, it should divesting her of her interest and title to cer- have been corrected during the term. A party tain property, vesting the same in Rosa Davis who knows of a material mistake in his judgand Duke Crawford, Sr.

ment during the term at which it was entered, Among other

and fails to take the proper steps to correct it, things, she averred that she had never agreed then ought not to bother a court of equity with to, or authorized any one to agree to, said it afterwards." judgment, and that she was not present at the time it was rendered, and did not know 4 S. W. 607, Judge Gaines uses the following

In the case of Bomar v. Parker, 68 Tex. 440, anything of it until a day or two before the

language: petition to set aside the judgment was filed ;

"It seems to us, however, that there is another that as soon as she learned of said judgment objection to appellant's cross-bill which is fatal she at once employed counsel for the purpose to his case. It is an original action, it is true, of bringing and prosecuting this suit. The ditions of a motion for a new trial. Such a

but one to which attaches the substantial concase was tried before a jury, and after the suit cannot be maintained without showing that testimony was closed, the court peremptorily the complainant has been prevented from makinstructed the jury to find for the defendants, ing his motion during the time of which the and the jury so found.

judgment sought to be set aside was rendered.

Hence if a motion be made and abandoned, it is Appellant has one assignment of error, and fatal to a new suit when brought for the same that is that the court erred in charging the purpose. We think, therefore, that a party who jury peremptorily in favor of defendant. institutes an original action for a new trial ocTo this the appellees urge that where a party his motion during the term at which the judg

cupies no better position than one who makes to a judgment has knowledge, before the ex- ment is rendered, and that he should be held to piration of the term of its rendition, and fails the diligence of prosecuting his action to a final to take the proper steps to have the same

determination.” corrected or set aside, he cannot afterwards In the case of Harn v. Phelps, 65 Tex. 592, maintain a suit in equity for such relief. Justice Stayton used the following language: It seems that the judgment was rendered in "She now seeks to set that judgment aside on the case of Rosa Davis and Sophie Durfee v. several grounds:

The reasons for not Duke Crawford, Sr., and Duke Crawford, Jr., asking the court to set aside the decree now

complained of, at the term at which it was enNo. 64963, on January 3, 1916. It is un- tered, and for delaying action so long, is thus disputed that appellant knew of the rendition fairly stated in brief of counsel for appellants. of said judgment less than 20 days after

Such results must often occur in the same was rendered, and had consulted with administration of laws necessarily imperfect,

through instrumentalities no better than the counsel in regard to having the same set laws they execute. But when, in the exercise aside. The record discloses the fact that of lawful power, a court has 'rendered a final the suit to set aside the judgment was not judgment, it must be held conclusive between filed until the 6th day of May, 1916, which pellate in character, unless some ground other

the parties thereto, except in a proceeding apwas more than four months after the judg-than that it is probably unjust is shown, which, ment had been rendered, and subsequent to under the settled rules of law, is deemed suffithe term of court at which the same was ren- cient to authorize a court of equity to re-ex

amine the case. Johnson v. Templeton, 60 Tex. dered. It may be said, upon the proposition 238; Nevins v. McKee, 6i Tex. 413. To enas to whether the said judgment rendered on title the appellants to the relief now sought, it January 3, 1916, in No. 64963 was entered is necessary that they should show that they by the consent of appellant, or whether coun- ment of which they complain, objections which

were prevented from urging, against the judgsel for appellant had authority to represent would, or ought to have prevented its rendition, appellant in the premises, there was a conflict and that this prevention resulted from fraud, but as before stated, there is no question that accident, or the action of the adverse party,

without fault or negligence on their part. appellant knew of the rendition of the judg-*

* The action in which the judgment comment within less than 20 days after same was plained of was rendered was instituted by the rendered. In the case of McLane v. San appellants, and it was their duty to know what Antonio National Bank, 68 S. W. 63, the transpired during its progress, and to take steps following language is used:

during the term at which it was rendered to set

it aside if unsatisfactory. There is no showing “Relief in equity cannot be had because of an that they were prevented from so doing by fraud, act or neglect of complainant's attorney in the accident, or the act of the adverse party. That

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a party may be poor is no reason why he should appeal or other appropriate proceedings instinot be held to the same rule of diligence in tuted for that purpose. prosecuting suits instituted by himself as are other persons. The appellants had sufficient

Appeal from District Court, Austin Counknowledge of the land for which they sued to ty; Norman G. Kittrell, Special Judge. successfully institute and maintain an action in

Suit by J. E. Edmondson, as County Atwhich they obtained a judgment declaring what interest one of them had in each of many tracts torney, for himself and in behalf of the of land; and, under such facts, it could not county, to restrain G. S. Cumings and othwell be held that any sufficient reason is shown ers, as members of the Commissioners' Court, why confirmation of the report of the commis- and the County Clerk of Austin County, sioners was not resisted at the term at which it was acted upon.”

from allowing county officials to pay for Assuming, therefore, that in the instant postage stamps out of the county fund. case counsel for appellant did not have the Judgment for defendants, and plaintiff ap

peals. Affirmed. authority to agree to the judgment that was entered, following the reasoning in the above J. E. Edmondson, of Bellville, for appelcases, this would not be sufficient ground for lant. Johnson, Matthaei & Thompson, of appellant in this suit to set aside the judg- Bellville, for appellees. ment previously rendered. It would not be sufficient, even for the sake of argument, admit- GRAVES, J. Appellant J. E. Edmondson, ting that appellant had been defrauded, but who was county attorney of Austin county, it must have been shown that the fraud was filed this suit in the district court of that perpetrated by adverse parties. In this case county against the county judge and other it is not even alleged that the appellees, Duke members of its commissioners' court and its Crawford, Sr., and Duke Crawford, Jr., were county clerk, alleging that he did so for himguilty of fraud or misconduct, or that there self and in behalf of the county, charging was any evidence to the effect that the appel that the commissioners' court had formerly lant was prevented from pursuing her legal allowed, and unless restrained, would in the remedies during the term of court at which future continue to allow all the county ofthe judgment was rendered and entered. ficers of Austin county to illegally pay for

Therefore, upon the consideration of the postage stamps used by them in their official entire record, we are of opinion that there and private business out of the county's was no error in the trial in the court below, funds, and praying for an injunction to preand that the judgment must be, in all things, vent any further such practice. affirmed.

The general purport of further averments was that large amounts of money are, in vio

lation of law, yearly paid out of the county's EDMONDSON, Co. Atty., v. CUM

general fund to its officials for postage INGS et al. (No. 7539.) .

stamps, which are not named or included (Court of Civil Appeals of Texas.

Galveston. in the statute allowing stationery to county March 28, 1918.)

officials; that some of these officers have no 1. DISTRICT AND PROSECUTING ATTORNEYS e property subject to

Om

property subject to execution and their 9-SUITS IN BEHALF OF COUNTY.

bondsmen are not liable for stamps so furNeither Vernon's Sayles' Ann. Civ. St. 1914, nished them; that neither appellant nor any arts. 366, 368, providing that county or district other taxpayer of the county had any adeattorneys could bring actions against officers intrusted with the collection or safekeeping of any quate remedy at law to stop or prevent the public funds, nor any other statute, conferred acts complained of; that the same would be any right upon a county attorney to bring an continued, and he and all other taxpaying action in behalf of a county to restrain the com- citizens would suffer irreparable injury, unmissioners' court, county judge, and clerk from allowing officers to buy postage stamps out of less the requested injunction were granted. county funds.

No authority was pleaded or shown for 2. COUNTIES Om 217-SUITS BY COUNTY-WHO bringing the suit in behalf of the county, no MAY SUE.

Where no statute gives county or district particular officer was named or charged with attorneys power to sue in behalf of a county, having used, or being about to so use, any the commissioners' court alone has the right to specified sum, nor was there any averment determine whether a suit shall be brought. that the action was brought for the benefit 3. INJUNCTION Eww118(1) – PETITION FOR of any other taxpayer than appellant. DEFINITENESS. A petition to restrain a commissioners' court

After a general demurrer, the appellees from allowing county officials to buy postage answered by a number of special exceptions, stamps from county funds, which did not name in substance challenging the sufficiency of officers who were going to buy stamps nor the the petition, among others, in the following amount thereof, was too indefinite to warrant particulars: (a) No authority in the county granting of an injunction,

, 4. COUNTIES Omw 206(1, 2) COMMISSIONERS' attorney to bring the suit in behalf of Aus

COURT-ALLOWANCE OF CLAIMS-NATURE OF tin county was shown. (b) No particular DECISIONS.

county officer was named, nor was it averAllowance of claims by a commissioners' court is a judicial act which cannot be revoked red that the commissioners' court had in the at a subsequent term, nor be collaterally at- past approved, or was threatening in the tacked, and can only be revised, if at all, by / future to approve, such use of any specific

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