The Houston Post. (Houston, Tex.), Vol. 27, Ed. 1 Sunday, June 16, 1912 Page: 27 of 62
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HOUBTOIT DAILY POSTt SUN DAY MOHNINQ: JUNE IG. 1912.1
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Important Opinion
y y by ..Justice Phillips
Affecti Life Inrar&nce Policiet.uid.Zi of Much Interest to Policy-
" holders
Negotiations between a life InsararHpa.'
.company and a policy holder for the er-
situation of a lapsed policy operate o
alve the forfeiture for nonpaymantof
premium according to a decision Of the
aurreme court of Texas in the cue at ta
Xgnitatiie Life Asairraace Society
Amanda M. Ellis. Tiie deel Ion's! far-
Anf and is of great Interest to in.
jsuiance cooipanle and - policy Holders.
opinion of Associate Justice Nelson
-3?hiihps follow: .. -...
"I ins was a suit in the trial court by
Amanda M. Ellis against the Equita-
ble Life Assurance society of the United
St airs to recover upon a policy of Ufe
insurance In. the sum of (24.000 issued
hy the defendant upon the life of Cas-
U U. EMs on April 16. 1M4 the an-
nual premium upon which matured on
March 24 of each year. Ellis was shot
on May 11 1906 and died from his wound
the following day. The annual premium
winch matured on March 24 1006 had
Ii"' been paid. The policy contained the
following provision:
This policy shall lapse and together
wlilj all premiums paid thereon shall
forfeit to the society on the noripay-
no nt of any premium when due"
which in 'connection with Ellis' failure
to pay the premium due March 14 j 1906
was pleaded by the company as a bar
to recovery. The plaintiff met this de-
fense with a plea to the effect that by a
course of negotiation had by the com-
pany with Ellis concerning this premium
and Its payment that continuued down
to and Including May 6. 1906 which will
be referred to hereafter the forfeiture
of the policy under the foregoing provi-
sion had been waived by the company.
The Issue of waiver was resolved In
favor of the plaintiff In the trial court
by the verdict of the Jury and the Judg-
ment of that court has been affirmed
by the court of civil appeals. The
principal question presented to us Is
whether there Is any evidence in the
inuru mat oujpui lb nie juiy d miuiins -i
llnon thin Issue the. other helne a stm-l
liar question with respect to the authority
of the agents of the company to bind It
by their conduct which Is . the depend-
ence in the case of the plaintiff upon the
main issue-
Agents of the Company.
This policy payable to his mother
and another of like amount payable to
his wife were originally Issued to Ellis
by the company through its general
agents at San Antonio Texas Marks &
riummer. During 1905 W. H. Bourke
was the cashier of the company at San
Antonio In the office of Marks & Plum-
tner. During 1906 James H. Wyman was'
such cashier at Austin In the-office of K.
H. Maker the general manager of the
company at that time for the larger part
of the Ktate of Texas. The contract be-
tween the company and Mark & riuni-
Jner provided that the company should
liave the right to appoint a cashier for
their otllce and business and It is to be
Inferred thai Hourke served as cashier
-' In tile San Antonio office under such ap-
pointment or employment. Wynuuv
aervt-d as cashier at Austin under direct
employment by the company. As cashiers.
In these respective ottices Bourke and.
"Wyman attended .to the collection of pre-
miums. The cashier always handled loans
on policies In the Austin office.
In 1H06 (lerald K. Hrophy was the
company's supeilntendent of Its exten
sion and loan department In Its gen- (
eral offices In the city of New York.
In the conduct of the business of the
Austin office applications for loans
Upon policies and for extensions In the
payment of premiums were referred by
that office to the superintendent of the
extension nd loan department wno
gave Instructions with reference there-
to to the cashier which were acted upon
by him.
In addition to the provisions above
. rioted the policy contained the following
provisions:
"1. Grace In the payment of premiums.
"Should default be made at any time
hereafter In the payment of any
premium due upon this policy as herein
provided the society will waive sucn oe-
iault and accept the payment of said
premium provided the amount thereof
With interest thereon at five per cent per
annum from the date of default be ten-
dered to it within thirty days after such
default."
"V. Reinstatement.
"Should this policy lapse by reason of
the nonpayment of any premium. It may
be reinstated at any time upon the as-
sured furnishing evidence of good faith
and satisfactory to the society and the
payment of all arrears and any indebted-
ness to the society under this contract
existing at the date of lapse . with in-
terest thereon at five per cent per an-
num." "XIV. Policy and application the en-
lire contract.
"This policy and the application there-
for taken together constitutes the entire
contract which cannot be varied except
In writing by one of the following exec-
utive officers of the society at Its home
office in New York viz. The president
one of the vice presidents the secretary
the assistant secretary the comptroller
the actuary the assistant actuary the
treasurer the auditor the associate
auditor the recorder the registrar or the
assistant registrar."
While under the policy as will be ob-
served from one of the provisions above
quoted a grace period of thirty days after
the default In the payment of the
premium that matured March 24 1906
could have been availed of by Ellis as
a matter of right he did not make the
payment within such period and the
tolicy thereupon lapsed according to Its
nhs. A further period of thirty days
Was provided In the policy as will be
also noted not of grace but within which
by permission of the company the policy
might be reinstated even after lapse
through a failure to pay any premium
Upon evidence of good health satisfactory
to the company being furnished and the
payment of all arrears and any lndebted-
gess with interest; but nothing was done
y Ellis to invoke a reinstatement of the
tiollcv under this provision and no ref
erence to It appears to have been made
In any of the negotiations .between him
nnd Wyman. the cashier of the Austin
office after the default In the payment
of the premium due Maroh 24 1906 had
occurred.
The Issue of Waiver.
The oiiestlon before us UDOn the issue
of waiver must be determined solely by
the conduct of the company of Its agents
acting within the scope of their authori-
ty. In relation to the 1905 premium but
as evincing the company's attitude to-
ward this risk and as we view It a pur-
pose to maintain this insurance in force
even at some breach of Its rules and
some sacrifice of Its general policy Its
action through Its cashier Bourke' in
respect to the 1905 premium may be
looked to as helpful to a clear grasp of
the issue and not without Influence In
Its true solution.
When that premium matured the com-
pany first granted an extension to August
it 1906; upon Ellis' payment of the cost
for the term rate "of that period. Ellis
did not meet the balance of the premium
due at this new maturity however. Hut
on a subsequent date after he had noti-
fied Bourke that he would transfer his
insurance to another company unless he
Was permitted to nay as he had proposed
the amount required for another exten-
sion he was granted such further exten-
sion or a reinstatement of both policies
contrary to the rules of the compaify but
pursuant to Its Instructions as a special
concession according to Bourke's state-
ment in one of his letters whereBy both
policies ware extended In force to. I)e-'
cember 22 1906. Neither did he make
the payment required and due on or by
this last named date. He only remitted
it on that date by mall from his home.
It was not possible for the remittance -to
) ve been received .at the San' Antonio
office to which It was sent until the
next day at least: but it was neverthe-
less accepted and duly applied' by the
cuinpanjj-without protest so far as is
disclosed by the record.
We will Jiere sumfcarlze what oocurred .
with respect to thV -1W6 premium. Av
nrltteij. notice that the premium would
Kllis February. -16 1906. containing- the
fallowing ciauet. ."Unless -the premltrm .
then due should "be oald to saldUaorfety
- tn that duty annotated arent or.Derson
sutnorisfclto eolrect such premtifln by-op'
i "" -
all ''payments thereon will be forfeited
and void."
Application for Loan.
While the latter is not set forth In the
recorg It appears from a letter of Wy-
man as cashier to Ellis of April I 10
that March 30 Kills had written a letter'
to Baker the general manager making
application for a loan on both his poli-
cies. This reply of Wyman Inclosed a
loan agreement to be duly executed
stated that the loan value of each poli-
cy was $575 and notified Ellis that a
remittance by him of 1366.50 would be
necessary to complete the transaction.
It being evident that the loan applied for
by Ellis was for the purpose of paying
the premiums on both policies that ma-
tured March 24.
Ellis replied to Wyman's letter April
6. He stated that he thought there must
be some mistake about the matter: that
he wanted the date of payment set up
Just nine months that Is from March 21
to December 24 and desired to make the
payment In such way as would bring that
about: that the loan of $575 of each -of the
policies as stated by Wyman was in ex-
cess of the amount of the premiums for
the nine months period and that the
amount of cash payment requested by
Wyman and the loan value of the policies
would be $57 In excess If the year's pre-
mium. He requested that the matter be
gone over again and that he be further
advised. He wrote Wyman April 12. re-
ferring to the previous correspondence
and stating that he had received no reply
to his letter. Wyman wrote him on April
11 Inclosing a copy of his letter of April
3. Ellis acknowledged receipt of this let-
ter April 16 advising him that he had
received Wyman's original letter of April
8 and had replied to It which he sup-
posed Wyman had not received and he
inclosed a copy of his reply to Wyman's
letter of April 6. He advised that the
transaction would have to be arranged
as stated In the previous letter as a loan
oej the policies would not be made unless
the premiums ere paid for three full
years. Ellis replied to this letter April
18 sRylng In effect that he could not un-
derstand why It was necessary for him
to pay nearly $400 more than he wanted
which he was not prepared to do in view
of the fact that the policies had a loan
Value of $150 In excess of the amount of
the loan he desired evidently referring
to the cost of carrying the policies to De-
cember 24 that is for nine months; that
the proposal of Wyman would still make
the premiums fall due March 24 the very
thing he desired to get away from.
Offered Note for Premiums.
He expressed his willingness to execute
his note secured by the policies for-the
amount of the premiums from March 24
to December 24 with6 per cent Interest
and requested an early reply. While Wy-
man had twice theretofore written Ellis
that It would be necessary for the full
yearly premium to be paid completing
the payment In full of three annual pre-
miums in order for the loan to be ob-
tained April 19 In reply to Ellis' letter
of April 18 he advised him that he was
taking the matter up with the home office
and would write hfm as soon as he re-
ceived reply. In this letter he called El-
lis attention to the fact that his thirty
??y-f race under the policies expired
the following Tuesday and that In order
lor him to be fully protected he should
sign the Inclosed request for extension of
thirty day; and should remit $61 to cover
me term rate for that time which he
stated would be held In the Austin office
in suspense until the matter was adjusted
It appears that Ellis did not reply to
this letter and on May 1 Wyman wrote
him another letter stating that he had
heard nothing from him; that as he had
previously advised he had written the
home office In reference to the loan and
that the company could not at that time
grant a loan unless the premiums were
paid carrying the policies In force until
March 24 1907. He further expressed the
hope that Ellis would remit the amount
necessary to complete the transaction
and inasmuch as the premiums were then
past due It would be necessary for him to
add 6 per cent Interest to the premiums
from March 24 the date of their ma-
turity. He reque8ted a reply by return
mail. Ellis replied to this letter under
date of May 2 as follows: "I fully note
the contents of yours of the 1st which
is about what I expected."
Last Letter.
The next and last letter In the corre-
spondence between Wyman and Ellis
as shown by the record was the fol-
lowing: Mr. C. C. Ellis Sartartla Texas
Austin. May 9 1906 Dear Sir: Tour
letter of the 6th Instant has been for-
warded to me from San Antonio as you
will see by the lnclosd envelope. 1 am
sorry I did not make the matter plain to
you In reference to the loan on your poli-
cies. You will see by referring to the poli-
cies themselves that three full years'
premiums must be paid before a loan
can be obtained. That Is the reason why
we are compelled to ask you for a re-
mittance to complete the loan transac-
tion. We can not grant you a loan on
policies to pay the -remlums for nine
months It is necessary to pay the pre-
miums carrying policies in force from
SJarch 1906. to March. 1907 In order to
secure the loan. In other words we can
not make you a loan on the policies up-
less the premiums for three years are
paid. The society Is willing to lend you
$1159 on the policies to apply toward the
payment of premiums due a short time
ago. Very truly yours.
James H. Wyman.
If Ellis wrote Wyman a letter bear-
ing date of May 6 which Is apparently
referred to In the above letter. It does
not appear In the record. It Is urged by
the company that this reference was to
Ellis' letter of April B which has been
already noted but which It appears
Wyman replied to on April 16 acknowl-
edging receipt of a copy of It and stat-
ing that he had not received the orglnal.
In connection with Wyman's letter to
Ellis of April 19 In which It was stated
that he was taking up the matter of the
loan with the home cmce It appears that
Wyman on the same date wrote Brophy
at New York the superintendent of the
company's loan and extension depart-
ment. In reference to the lean although
trs letter Is not shown In the record. On
April 25 Brophy replied to Wyman fol-
lows: Letter from New York.
Mr. James H. Wyman Austin Texas.
New York April 25 1906 Dear Sir:
Your letter of the 19th Instant in regard
to policies Nos. 1S2481S and 1324814 Ellis
Is received and carefully noted. We
find that these policies were Issued In
March 1904. so that only two full years'
premiums have been paid on each. We
could not. therefore consider the matter
of a loare unless premiums are paid forJ
another run year on eacn policy tnereoy
completing the three years' payments
which must be made before the contracts
become entitled to any surrender yalue.
Much as we would like to assist you In
retaining this business on the books ws
are unable to extend the .desired aid in
this Instance for the reasons above ex-
plained. Provided that premiums are paid
to March 24 1907 a loan of $575 could
be granted on the seourlty of each con-
tract: in fact. It would not be necessary
for Mr. Ellis to actually pay these pre-
miums in order to obtain the loans. It
Is possible for us as you are aware to
complete the loans applying the pro-
ceeds In payment of the premiums- but
we can not undertake these transactions
unless the balance required to close the
deal Is forwarded1 to us together with
the policies and necessary roan agree-
ments. Regretting our Inability to serve
you we remain Very truly yours
O. F. Brophy Superintendent
Wyman's letter to Ellis of May 9. above
set out was evidently written pursuant
to Brophy's letter to him as it proffered
to make Gills yie loan In the same terms
as Brophy expressed It It was for all
Dractlcat purposes but a repetition to
..Ellis of Brophy's letter amounting In ef
fect to a direct proposal to Kills from the
'company's superintendent bf 4he loan and
extension department to make the loan
and 1 may be regarded as expressly au-
thonsea ty mat ocnciai oi tne company.
The thirty .day of srraoe la which
Ellis ould a matter of right have
'oes-tod asp of tbe policy by tns pay-
taeasM ta .fwemUiea ax aired April -U.
Brophys letter was written April J twe
days after the policy aecordlng to Its
terma had lapsed as Brophy must have
known.
Reaching the
The caae is. therefore rsaolved Into one
where with a policy lapsed and forfetted
aocordlng to ha provisions a general of-
ficer of the company of Brophy's rank
and authority proposes to make a loan
tt the assured to enable him to pay the
accrued premium with the policy as the
sole security and affording security to
the company only because It would pos-
sess a loan .value of $576 upon the pay-
ment of $171.26 which proposal is cum-
munlcated by mall by an accredited local
representative in line with his duties to
the Insured two days before he Is wound-
ed and three days before his death and
doubtless only received by him on the
day before he was shot; and the affect
of such action la to be weighed and de-
termined accordingly.
The law plainly Is that when a policy
of Insurance provides the premiums shall
be paid on or before a stipulated day or
the1 policy shall become forfeited and
void time becomes of the very essence
of the contract and a failure to so pay
the premium determines It but concurrent
with this principle Is always the qualifi-
cation that tills Is so unless there be a
waiver or estoppel. We fully subscribe
to the doctrine that in such cases tne
forfeiture occurs ipso facto and n act
of the company need- be done either to
declare It or enforce It. But of equal
force and dignity is the further funda-
mental principle that a provision for for-
feiture for nonpayment of premiums when
due is for the benefit of the Insurer and
may be waived by It No act need be
done to declare the forfeiture but some
act may be done that will waive It is
the comprehensive' rule wherein Doth
Principles are blended and harmonized so
hat rights shall be preserved and hard-
ship may be averted.
The law Is not unmindful that the na-
ture of men Is such that not always do
they stand unyielding and relentless in
the assertion of their rights. It will not
hesitate to enforce them even In hard
cases and in the face of a harsh conse-
quence but It never discourages a gen-
erous impulse or Imposes a restraint upon
magnanimous conduct. Those chapters
In the ancient annals of law that are
marked with the rigor and severity of
a strict application of the doctrine of
forfeitures are' not the proudest In our
history and have Inspired no tribute from
the -enlightened thought of a more toler-
ant time. And It Is not to be wondered
that In the humane progress of the law
the doctrine of waiver as applied to for-
feitures soon grew up and has become
established as a fundamental principle.
While it la a maxim that forfeitures are
odious the law is not eager to relieve
against them; It takes no Initiative and
In Itself presents no remedy against the
contract parties themselves have made.
But It Is not and should not be slow
to give effect to conduct reasonably In-
dicative of an intention to forego the
advantage of a forfeiture and relinquish
Its result. Hence the holding that It will
seize upon slight circumstances as evi-
dence of such intention and the further
settled rule that In our opinion controls
tills case that a waiver of the forfeiture
of a policy of insurance will result. In
the absence of any agreement to that ef-
fect from negotiations or transactions
with the Insured after knowledge of for-
feiture by which the insurer recognizes
the continued validity of the policy or
does acts based thereon. Joyce on Ins.
Sec. 1S63 Titus vs. Ins. Co. 81 N. . 419;
Hollls vs. State Ins. Co. 65 Iowa 460.
Applying the Rule.
Applying this established rule to the
facts of this case It can not be doubt-
ed that (he letter of May 9 1906. written
to Ellis by Wyman the cashier of the
company's Austin office following and
pursuant to Brophy's letter to him af-
fords sufficient evidence upon the Issue
of wavier to support the Jury's deter-
mination of that Issue In favor of the
plaintiff In the case.
At the time of both Brophy's letter to
Wyman of April 26 1906 and Wyman's
letter to Ellis of May 9. 1906 as we have
before stated the period of grace pro-
vided In the policy had expired. By Its
own terras It was a lapsed policy and
subject to revival only through the means'
of the other provision In It with refer-
ence to the installment under which as
a matter of concession by the company
It might have been reinstated hy.JOIlls'
furnishing evidence of good health sat-
isfactory to the company and his pay-
ment of all arrears and Indebtedness
due It- with interest which would have
been tantamount to the issuance of new
Insurance.
As such reinstatement was purely op
tional with the company at the time
these letters were written Ellis stood di-
vested of any right under the contract
that he oould have enforced and tne
continuance of his Insurance was de-
pendent entirely upon the will or dispo-
sition of the company.
With this as his position and such the
status of his Insurance we find the com-
fany through these agents on May 9
U06 again preferring to make him a loan
Upon his policies whereby the premium
might be cared for as It had theretofore
offered to do. The security that It pro-
posed to take for the loan was only that
afforded by the policies themselves. If
recognised and treated as existing and
valid policies they were capable of pof-
essing a certain present loan value and
would attain such value upon the pas-
ment before stated. If they were for-
feited policies in the eyes of the company
they were without any validity and could
not bo made to possess any value for
any purpose unless their reinstatuiue.nt
was flrsB accomplished which was not
proposed or even suggested.
Loans and Defunct Securities.
It is unbelievable that this company
would have been offering to make a
loan and take as security for It some-
thing that It recognized and held to
be defunct and void and incapable
of
Dossesslng any value. It Is more
rea
sonable as M-ell as more consistent
with Us previous attitude toward the In-
surance and Its previous conduct In re-
lation to It. to believe that In repeat-
ing this offer on May 8 1906 It recog-
nized the policies as still valid and
therefore convertible Into a loan value;
and that nouvlthstandlng their lapse
according to tnelr terms and the accural
of the forfeiture it desired to be under-
stood as willing to forego Its right of
forfeiture and continue the policies In
force as security for Its loan and as pro-
tci lion upon Ellis's lie.
If this action amounted to recognition
upon the part of the company of the con-
tinued validltyJVrf the policies or was
equivalent to an aet based thereon it
was legitimate evidence of waiver. If
the proposal to make the loan at such
a time and under such circumstances was
not In recognition by the company that
the policies still possessed life and vir-
tue its action must be regarded as with-
out reason and barren of any purpose.
The conclusion Is Inevitable that It was
a recognition of the continued validity of
the policy In this suit and we so hold.
It Is urged by the learned counsel for
the company that this proposal to make
the loan and all offers made by Wyman
after April 23 1906 the expiration of the
period of grace provided In the policy
must be construed as having relation to
a reinstatement ?f the policy under the
reinstatement provision and as having
been made on condition that Ellis would
comply with that provision by furnishing
evidence of good health satisfactory to
the company. But this would attach a
condition that the proposal Itnelf did not
Impose. There is no suggestion In either
letter written hy Wyman to Ellis sfter
April 23. 1906 that Ellis would first have
to comply with that provision or that the
policy -ivould have to be reinstated under
It. In neither letter is there- any refer-
ence at all to that provision. Nor In
Brophy's letter Is there any Such sugges-
tion or reference. The proposal was abso-
lutely unconditional except with respect
to the payment by Bills of the amount
required "to complete the transaction"
nd Is not open to other construction.
Two Offers the Same.
.. The Identical offer had been made be-
fore the expiration oi the period of grace
and before the policy had lapsed and In
the renewed .offer of May there Is nothing-
to Indicate that the status of the
policy In the estimate of the company
was in any respect different from Its
status during the period of grace. It
was then recognized by the company as
an existing policy and as the latter pre-
cludes the view tlt the attitude of the
rompany toward It had undergone any
change It must be held that on May
the company still recognised It as an ex
isting policy. ..
it was lorcioiy orapnamsBa m argument
anhried by the eotnpaay. and eirhoogh. the
company was endeavoring la this negotia-
tion to provide a way for the continuance
of the Insurance at no time did he com-
ply with any e4T 1U isopoaals but at al)
times i artieed to act upon any of them.
That be was not misled at any stage of
the negotiation venU be a conclusive
argument were) the question before us
merely one of setoppei. But the question
here im one of waiver and It was not
necessary for IS Us to have been misled
for a waiver of the forfeiture to be ac-
complished. The issue of waiver ts not to be deter-
mined by what Ellis did or omitted to do.
It should be considered only in the light
of what tne oompany did. Ellis had no
power to waive the forfeiture and his
conduct or mental condition could have
had no probative fovea upon the ques-
tion as to what the Company dud or in-
tended to do or uporn the effect to be
given Its action. It alone had the power
to waive. ' Its action alone could consti-
tute a waiver. Waiver Is essentially un-
ilateral In its character; It results as a
legal consequence from some sot or con-
duct of ths party against whom It oper-
ates: no act of the party In whose favor
it Is made Is necessary to complete it.
It need not be founded upon a new agree-
ment or be supported by a consideration;
nor Is It essential that It be based upon
an estoppel.
Reasonable Tims.
It la certainly true hat this Insurance
would not have continued In fon-e Indefi-
nitely without Ellis' pyment of the prem-
ium or Its adjustment in some manner
satisfactory to the company hut It can
not be doubted that he was entitled to a
reasonable time after his receipt of the
letter of May 9 within which to either pay
the premium or adjust it In the way the
letter propoeed. If lie had failed to do
so within such time the right still In-
herited In the company to de( lare and en-
force the forfeiture notwithstanding It
had theretofore waived It.
Th waiver was completed by the act
of conduct of the company that constl
tuted It. It was operative for a reason"
able time thereafter ana during sucn
neriod. within whtcli Ellis had the right
to avail himself
of It and adjust
LUG
the
premium In the
manner proposed.
Dollcy would be considered as txl;
tstlng
and In force.
But It seems to us that additional force
and effect are given to the conduct of
the company and particular: to Us act
in again proposing to make the loan in
the letter ot May . by the very refusal
therefore of Ellis to comply with any of
Its former offersv It snowed mat the
company did not accept what It here
characterizes as a stubborn refusal by
Ellis to accept It's previous offers but In
the face of such refusal It continued Its
tender of the loan with the wlictes as
security. It is hardly in position to in-
voke in aid of Us defense Kills refusal
to accede to the terms of its previous
offers when hard upon hie failure to ad-
just the premium as It had theretofore
proposed and with knowledge of that fact
clearly In Its possession and only recently
renewed. It again on May 9. repeated Its
proposal to make the loan upon the poli-
cies on the same terms that It Is said
Ellis had theretofore rejected
Maintained In Force.
What the company now relies upon as
perverseness on Ellis' part only serves
to emphasize its own action In the face
of It. That under such circumstances It
renewed Its offer to make a Umn upon the
policies only tends to more strongly
evidence a desire upon Its own part to
maintain the Insurance In force and to
more clearly indicate that it did not con-
sider the policies were void but was
withholding Its right to enforce the for-
feiture In order that they might be con-
tinued I nforce for the purpose of afford-
ing security for the loan
An unanswerable test of the whole
question is this: If Ellis within a rea-
sonable time after his receipt of the
letter of May 9 had made the remittance
requested and delivered his note with the
policies as security as proposed would
the company have accepted such adjust-
ment In full settlement of the premium?
That It would have done so It seems to us
Is plain from the very terms of Brophy's
and Wyman's letters. It Is fair to Infer
that it would have done what It had Just
said It was willing to do. And both let-
ters Staled that It was willing to com-
plete the transaction In this way and
upon these terms.
as the Question or waiver is tu be ne-
I termlned by tile company's conduct and
f not by any failure of Kills to act in the
I premises It the company would huvu so
accepted the proposed payment and note
within a reasonable time after May 'J hi
settlement of the premium that the trans-
action was not so completed by Kills did
not relieve Its act of Its force as on af-
firmative evidence of waiver or at least
as tending to establishing 1t. Under any
view It can not be said that Ellis had
reasonable opportunity to act upon the
offer as thus renewed In the letter of May
9 for he was nhot on the day It was
doubtless received and died the next day.
At the time of his death the offer of the
company to accept this policy as security
for a loan sufficient to cover the pre-
mium upon Ellis' payment'of $178.26 was
still an open one and If It was the policy
can not be said to have been forfeited and
void.
Issue of Authority.
That the evidence wtyi sufficient to show
authority In Wyman to make the proposal
contained In the letter of May 9 Is. In
our opinion also clear. Brophy's letter
of April 25 fully authorized Wyman's let-
ter of May 9 and the latter may be con-
sidered as Brophy's act as we have stat-
ed. Brophy was the superintendent of
the department of the company at Its
home office that dealt with the extension
of premiums and loans upon policies. Such
matters were referred to him; his instruc-
tions upon them uero observed by local
agents and his act must be held as that
of the company. The limitation In the
policy that It could not be varied except
by certain officials other than Brophy
was not conclusive. Insurance Co. vs.
lee "3 Texas 6(6.
The case. has commanded and has re-
ceived our earnest and careful considera-
tion. It Involves a large amount which
this company i In yi be required to
pay If this policy ..us not In force at the
time of the death of the Insured. It Is
clearly liable however under Its con-
tract If it had waived the forfeiture. Our
decision upon the question only gives that
effect to Its own acts that In our opinion
the law plainly Imparts to them. The trial
court has resolved the Issue. There was
evidence adduced that supports its Judg-
ment and It should stand
The Judgment of the district court and
that of the court of civil appeals are ac-
cordingly affirmed.
Nelson Phillips.
Associate Justice
(Associate .lustlco Dlbrell being dis-
qualified did not sit In the case of partici-
pate in Its decision .)
FAMILY WEALTH FUNDED.
Seven Weltmang Incorporate That
' None May Starve.
(From the New York Sun.)
The seven Welunan brothers of this
city have organized a protective pol-
icy for the members of their Imme-
diate families Through their attor-
neys Kantrnwltz & Esbera 320 Broad-
way. Ihe brothers have formed the
Welimun Family Fund
Family Fund Incorporated.
The fund has at Its foundation
food I y
sum of money which will be added to
each year hy the brothers and in case of
death or any one or them his will be-
queaths all to the fund. The purpose of
the Weltman family fund Is to provide
money to aid any or all members of the
Immediate family who may become help-
less or In need to educate the children
and to Insure suitable burials for all In
the Weltman lot.
The Idea of this fund M somewhat
similar to the Hockefeller Foundation
except that the Weltman wealth Is to be
expended only for Immediate relatives.
The officers of the corporation are the
seven Weltman brothers six of whom
are merchants. One Nathan Is a farm-
er. The brothers say that should the plan
work out according to their expectations
the fund will grow to such proportions
that Its proceeds may be expended upon
all branches of the fortunate Weltman
clan. At present all the brothers are
married ana have children.
If you have the Itch don't sera ton. It
does not cure the trouble and makes the
skin bleed. Apply BALLARD'S SNOW
LINIMENT. Hub It In ' gently on the
affected parts. It relieves Itching in-
stantly and a few applications removes
the cause thus performing a permanent
cure rnce zsc evo bub v.v (w poiue.
Bold by all druggists.
Cockrell's Specials
FOR TOMORROW MONDAY V
For a More Complete List See Our Windows and Coimters -;
PATENT MEDICINES.
Stearne's Wine of Cod Liver
Oil. $1.00 bottles; gQ
Rabanete Liver Tablets 1-
25c bottles
Cockrell's Vegetable Liver
Pills the best substitute for
calomel; 25c bottles;
Narco Blood Purifier
$1.00 bottles at only. .
69c
Dioxogen Oakland $1.00
sire! at U3U
Beef.- Wine and Iron
$1.00 quality; at
49c
Effervescing Phosphate 0C
Soda a bottle only fcWU
FACE PREPARATIONS.
Sempre Giovine 50c OCn
package ; at wJb
Theatrical Cold Cream 01 -one-half
pound cans. ... fc I u
Cold Cream Daggett & 9C
Ramsdell's. 50c size: at.. 0U
Pompeian Massage
Cream 50c size ; at . . .
33c
TOOTH PREPARATIONS.
Sanitol Tooth Wash 25c 1 0p
size ; at IQ
Sozodont 25c size. Powder
Paste or Liquid; 18C
Pebico Tooth Past
38c
Bciersdorf 50 cents
Cockrell's
502 TRAVIS
Have Von Tried rjea Stock W?
It's the Feed That Has the Reputation 1
Of keeping an animal in better health and condition than any other brand manufactured.
a . STOCK PIED
mm
HOUSTON.TEXAS.
Y FIRST CLA
WW. f...
;M AT E R f A L U S
--IF YOUR Of ALEfif
S NOTKEEPiT.
PHONE not
' 'lev
Phone Preston 671
Automatic A1671
We are prepared
WOMAN WHO MADE GOOD.
Reindeer Queen of Alaaka Competed
With Men.
(From the Christian Herald.)
When a woman In an enlightened coun-
try makes her Xway to a front rank In
the Industrial iorld. the fact soon be-
comes known and people are eager to
learn something of the conditions that
brought It about and of the character of
tha una wha aocorflDllshed It. That a
woman with a-brown skin should also
iMirasafiiHr compste with the mea of her.
EMM
JUST A FEW OF-
OPTICAL DEPARTMENT
Ask tu see our new Stic-Titc
Eye Classes. They stick all the
time and fit any nose.
TOILET WATERS.
Vantine's Corylopsis of CQp
Japan at UUU
Locust Blossoms Da-
brock's at
Cockrell's Supreme Vio-
let $1.00 size at
49c
65c
Soul Kiss Toilet Water adver-
tised to sell at $1.00; gg
Hot House Violet advertised
to sell at $1.00; ggg
CIGARS AT RETAIL.
Tom Keene Cigars three Qq
Hoffman House Cigars 1(1
three for I Ul
Pure Food Smokers
eight for
HOO-DOO
Ant Paper 15 sheets
at
25c
10c
than
For greater bargains
these see our counters
show cases.
and
Cut Rate Drug Store!
ST. PHONE PRESTON 610.
It is pure wholesome and nutritious made only of
the best feedstuff that can be obtained. Through
the merits of our Feed we won our customers and
now they feed nothing else; for they as well ' as'
ourselves think there is none as good. You must
remember that in buying stock feed quality counta
much more than quantity. However we don't know
of any feed that is as cheap as
'i
$eoi Ideal
quality considered. We do not ask you to take our
word but become an Ideal Stock Feed purchaser
yourself and prove that our assertions are true. '
Houston Shilling
Company
1015 Willow Street HOUSTON TEXAS
6
V9
Seasonable
Coolers. Freezers. Filters
Fruit Jars Jelly Glasses Rubbers
and Thermatic Fireless Cookers
Come in or phone us about (hese Summer Good's.
Ample Stock. ". Prices and Goods Guaranteed.
JNO. McCLELLAN & CO. Inc.
1012 Texas Avenue
to make merchants prices on above goods
race Is less generally umlsratimri. Out
of the 260 Eskimos who own reindeer In
Alasaka. two are women. One of thrne
Mary Arlsarlook Andrewnk has received
the title of "Relndeier Queen (if Alaska."
"Queen Mary" ownn a herd of 1303
deer which she manane with Judgment
and Intelligence) According to the usual
contract made with tho government she
Is required to train three apprentices and
to give tp each the customary number
of deer. She has done better tstan tht.
She has trained and rewarded eght or
ten apprentices and at the present time
has another under her care. She long
since uiiKJruw it is'""t v.
iUMtriiii In vuhieh mhit was horn.'
and la ..sow comfortably housed near
warw TiriWTrffWJ'V
eV nvael a W9 M4W '
Pozzoni'a Face Powder"'
!?33e
50c box at
Riveri's Talcum Powder ! tt2 i
25c box at . . IOC -
Egyptian Face Powifier iQfr T
25c box at J3C
Cockrell's Adorable Face Pow-' T
der 50c boxes; ' 30C
Velota Face Powder 25c 44
boxes; at IHU
RUBBER GOODS.
Whirling Spray Syringes $2.00 V
Values ; on sale 95C
Bulb Syringes red rub- CQf
her $1.00 quality 39C
Fountain Syringes Florence v '
No. 3; our 85c special; C0s
at VVU
Hot Water Bags $1.00 CQ J
quality ; at U3C
MISCELLANEOUS.
Society Playing Cards OQp
Kilt edge ; 50c quality . . fcUu
Bicycle Playing Cards QJ
25c values : at I uu
Rhinola Shn Pnllah . ItY- rA
5c'
londi
boxes : at
Insect Powder Diamond i k
Brand large size; a pow
25c
der gun free
RAT CORN.
Rat Corn kills rats and mum-
mifies them: 25c 0fll
boxes 4UU
Stock Feed
BaeasaassNaBBaMaBaaaB'-
Goods
Nome. In a cabin of logs. She speaks
even or eight Indian languages anH tola-
has enabled her to be of eonalderabla
service as an Interpreter. -Queen
Mary has brought tip a number
of helpless Children and havlaa aone of
her own. haa not only caredfor -hem
Physically. b has also; given them TV
pl"? heart- Surely according T'
to her Ught."she Jieth done ! lerpatV'
Twenty cants baca on every gallar'al
mlta's Drug Ca. tea Praatoa. J . j
Dr.- H. T. Hamblenv dentist Room V
J union wauoaai aana. jrnone
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The Houston Post. (Houston, Tex.), Vol. 27, Ed. 1 Sunday, June 16, 1912, newspaper, June 16, 1912; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth605089/m1/27/?rotate=270: accessed July 13, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; .