Ætna Life Ins. Co. v. Shipley, 13987.

• Decision Date: 24 November 1939
• Docket Number: No. 13987.,13987.
• Citation: 134 S.W.2d 342
• Court: Texas Court of Appeals
• Parties: ÆTNA LIFE INS. CO. v. SHIPLEY.

134 S.W.2d 342

ÆTNA LIFE INS. CO. v. SHIPLEY.

No. 13987.

Court of Civil Appeals of Texas. Fort Worth.

November 24, 1939.

Rehearing Denied December 22, 1939.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Action by Mrs. Flossie Shipley against the Ætna Life Insurance Company on a group life insurance policy. Judgment for plaintiff, and defendant appeals.

Reversed and cause remanded.

Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellant.

Napier & Napier, of Wichita Falls, for appellee.

BROWN, Justice.

Appellee, Mrs. Flossie Shipley, surviving wife of Jack Mack Shipley, brought suit against appellant, Ætna Life Insurance Company, to recover on a group life insurance policy issued to L. T. Burns and C. B. Long, intended to cover such of their employees as desired insurance protection thereunder. The policy was issued September 23rd, 1932, but the deceased, Shipley, did not elect to take out insurance thereunder until about October 16th, 1937, when he, as was required of him, made application for such protection in writing.

The following questions were propounded to Shipley, and the answers shown were given by him:

"Q. Are you now in good health and regularly performing the duties of your occupation? A. Yes.

"Q. Have you ever had any disease of the * * * stomach * * * or cancer? A. No.

"Q. Have you any infirmity or growths * * *? A. No.

"Q. Have you consulted, been examined or treated by any physician or practitioner within the past five years? A. Yes; (but the applicant gave as his answer that the treatment was `cold serum', and as to the length or duration of his ailment, and the degree of recovery, `O. K.').

"Q. Have you * * * been a patient in any hospital or sanatorium? A. No."

The following statement is found in this application: "I hereby certify that the foregoing answers and statements are made by me and are complete and true, that they are correctly and fully recorded, and that no material circumstances or information has been withheld or omitted concerning my past and present state of health and habits of life, and I agree that the answers and statements contained herein shall form a part of my application for insurance under said group policy."

The policy of insurance contains the following provisions: "This policy, the application of the employer and the individual application, if any, of the employees insured, constitute the entire contract between the parties hereto. All statements made by the employer or by the individuals insured shall in the absence of fraud be deemed representations and not warranties, and no statement shall avoid any insurance under this policy or be used in defense of a claim under it unless it is contained in a written application."

The Insurance Company specifically pleaded the actual condition of Shipley, for several months prior to his making application for insurance, the fact that he had been ill, had been treated by a physician, had been to a hospital, that he was suffering from a cancer of the stomach, and was so advised by the physician who treated him, and that he died from the effects of a cancer.

The answer is full, complete and presents a good defense to any recovery upon the policy, if any of the material facts so pleaded are true.

The cause was tried to a jury, and before a charge was given by the trial court, the defendant requested the court to instruct the jury to find for it, The request was denied.

The jury made answers, in substance, as follows: (2) That Shipley was regularly performing the duties of his occupation on October 16th, 1937; (2a) that the failure of Shipley to regularly perform the duties of his occupation was not material to the risk assumed by the defendant company; (4) that Shipley was in good health on and prior to October 16th, 1937; (5) not answered, under the instructions as to the answer to 4; (6) that the representation made by Shipley, in his application, that he was in good health, was not fraudulently made; (7, 8, 9 and 9a) not answered, under the instructions as to the answer to 4; (10) that Shipley had not suffered with a duodenal ulcer on or prior to October 16th, 1937; (11) not answered under instructions as to the answer to 10; (12 and 13) not answered under instructions as to the answer to 11; (14) that the ulcer did not materially contribute to Shipley's death; (15) that Shipley did not have a cancer of the stomach on or prior to October 16th, 1937; (16, 17, 18 and 19) not answered under instructions as to the answer to 15; (19a) that the cancer was not material to the risk assumed by the insurance company; (20) that Shipley did not have any growth on or prior to October 16th, 1937; (21) not answered under instructions as to the answer to 20; (and 22 and 23) not answered because of instructions as to the answer to 21; (24 and 25) not answered under instructions as to the answer to 20; (26) from a preponderance of the evidence the jury found that the cause of Shipley's death was unknown; (27) that Shipley did not have any stomach disease on or prior to October 16th, 1937; (28) that Shipley's representation that he had not suffered from a stomach disease was not fraudulently made; (29) that the representation by Shipley with respect to a stomach disease was not material to the risk assumed by the insurance company; (30) that Shipley's stomach disease was not material to the risk assumed by the insurance company; (31) that Shipley's stomach disease which he had on or prior to October 16th, 1937, did not materially contribute to his death; (32) that Shipley's representation in his application that he had not consulted, been examined or treated by any physician or practitioner within the past five years was not fraudulently made; (33) that such representation was not material to the risk assumed by the insurance company; (34) that the jury "believed" that the Insurance Company would have insured Shipley if it had known the true facts concerning Shipley's consulting and being examined and treated by a physician, "within the past five years"; (35) that Shipley's representation that he had not had any sickness within the past five years for which he did not receive medical attention was not fraudulently made; (36) that such representation was not material to the risk assumed by the insurance company; (37) that Shipley's representation that he had not been a patient in a hospital or sanatorium was not fraudulently made; (38) such representation was not material to the risk assumed by the insurance company; (39) that the insurance company would have insured Shipley even if it had known the true facts as to such representation; (40) that prior to October 16th, 1937, Shipley never had any infirmity; (41, 42 and 43) not answered because of instructions as to the answer to 40; (44) that from March 1st, 1937, to October 16th, 1937, Shipley did not have any sickness for which he did not receive medical treatment; (45 and 46) not answered because of instructions as to the answer to 44.

After the verdict was received, the defendant moved for a judgment notwithstanding the verdict and its motion was denied.

Motion for a new trial being timely filed and overruled, the cause is brought before us for review of the judgment rendered for the plaintiff on the verdict.

At the very outset, we desire to say that we would not, in good conscience, permit this verdict and judgment to stand, because of the very nature of the verdict, and we want to draw a word picture of the verdict and show our reasons for such conclusion.

On the first issue submitted, the jury found that Shipley was regularly engaged in the performance of the duties of his occupation, on October 16th, 1937, and on the second issue, which was so worded that it required no answer unless the jury found that Shipley was not performing such duties, at such time, the jury found that Shipley's failure to perform such duties was not material to the risk assumed by the insurance company.

In answer to issue No. 10, the jury found that Shipley had not suffered from a duodenal ulcer on or prior to October 16th, 1937, and in answer to Issue 14, which, by its wording, required no answer unless the jury found that Shipley had the said ulcer, the jury found that the ulcer which Shipley had did not materially contribute to his death.

In answer to Issue No. 15, the jury found that Shipley did not have cancer of the stomach on or prior to October 16th, 1937, and in answer to Issue 19a, which required no answer unless the jury found that Shipley did have such cancer, the jury found that the cancer which Shipley had was not material to the risk assumed by the insurance company.

In answer to Issue No. 27 the jury found that Shipley did not have a...