Allen v. American Nat. Ins. Co.

• Decision Date: 03 June 1964
• Docket Number: No. A-9818,A-9818
• Citation: 380 S.W.2d 604
• Parties: Ruby M. ALLEN, Petitioner, v. AMERICAN NATIONAL INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 604

380 S.W.2d 604

Ruby M. ALLEN, Petitioner, v.AMERICAN NATIONAL INSURANCE COMPANY, Respondent.

No. A-9818.

Supreme Court of Texas.

June 3, 1964.

Rehearing Denied July 15, 1964.

Dunnam, Dunnam & Dunnam, Waco, for petitioner.

Beard, Kultgen & Beard, Waco, for respondent.

NORVELL, Justice.

Ernest Jody Allen suffered a massive myocardial infarction on July 1, 1962 which resulted in death.His widow brought this suit against American National Insurance Company to recover upon an insurance policy.After a jury trial, the District Court awarded Mrs. Allen a judgment for $7,600, being the face amount of the policy ($5,000) plus a statutory penalty and attorney's fees.This judgment was reversed by the Court of Civil Appeals.370 S.W.2d 140.

Mrs. Allen's application for writ of error was granted.Because of this action, the insurance company's application praying for a rendition of judgment in its favor, was also granted so as to being the entire case before us.Because of the dual positions occupied by the parties here, their trial court designations will be used.

We have decided that under the jury findings relating to the pleaded defense that the policy of insurance was procured by fraudulent representations, judgment should have been rendered for the defendant.

Procedural problems are raised by the record.The opinion of the Court of Civil Appeals sets out in detail the evidence relating to the procurement of the policy.We need repeat only so much of that Court's statement as may be necessary to make the bases of our holding clear.

At the outset it should be said that we agree with the holding of the Court of Civil Appeals that the findings of the jury which have evidentiary support establish no basis for either a waiver or estoppel against the insurance company.That Court correctly held that there was no evidence 'that the company or (its) agent knew insured had any pre-issuance disease of the heart before the promise to pay (the proceeds of the insurance to Mrs. Allen) was made.'The waiver and estoppel issues are adequately discussed in the opinion of the Court of Civil Appeals and hence further discussion relating thereto is pretermitted.

The trial judge submitted certain issues embodying the fraudulent representations defense which were answered favorably to the insurance company.However, judgment was rendered for Mrs. Allen.The recitals of the judgment do not specifically point out the theory upon which it is based, although the insurance company pleaded two special defenses and the plaintiff asserted a waiver or estoppel against the insurance company based upon the actions of the insurance company representatives which took place after the death of Mr. Allen.The judgment simply recites that 'the court having found from said verdict and evidence herein that defendant is legally bound and obligated to pay plaintiff under the terms of the insurance policy on the life of Ernest Allen, deceased * * *.'

In it motion for new trial, the insurance company urged that the judgment theretofore rendered should be vacated and in lieu thereof judgment should be rendered that plaintiff take nothing.It was averred that:

'In its answers to Special IssueNo. 22a, 23, 24, 25, 26 and 27, the jury found on the basis of sufficient evidence all of the elements of a defense to Plaintiff's claim on the ground of misrepresentation on the health of Ernest Jody Allen except materiality.Allen's answers to the inquiries in his application for insurance that he had had no diseases of the heart, when in fact he had had serious heart attacks and flare ups about every six months for several years prior to his death and when he died from a heart attack were material as a matter of law.In any event the Jury's finding in Special IssueNo. 29 that Allen suffered an acute myocardial infarction made his death from a later myocardial infarction more likely, which answers were based on sufficient evidence, constitute a finding of materiality.Since all of the elements of the defense to Plaintiff's claim based on misrepresentation have been thus established, the trial court erred in entering judgment for Plaintiff and failing to enter Judgment for Defendant.'

This position was constantly maintained in both the Court of Civil Appeals and in this Court.In our opinion it must be sustained.

By its answers to the issues mentioned in the motion, the jury found from a preponderance of the evidence that (22-a) Mr Allen answered 'no' to the question in the life insurance application inquiring whether he had ever had or had been treated for high blood pressure, shortness of breath, any disease of the heart, chest pain, low blood pressure or abnormal pulse; that (23) Allen intentionally answered 'no' to such question; that (24) such answer was false; that (25)'Allen knew or should have known that the answer 'no' * * * was false'(italics supplied); that (26) Allen gave the answer 'no' for the purpose of inducing the insurance company to issue the policy; that (27) the insurance company relied upon Allen's answer to the question in the application 'referred to preceding Special Issue 3 (sic, evidently 23 was intended) in issuing the life insurance policy in question'; that (29) Allen suffered an acute myocardial infarction in 1957, and that (30) the 1957 infarction made his death from a later myocardial infarction more likely.

The Court of Civil Appeals ordered a new trial of the cause stating that the trial court's judgment was apparently based upon the erroneously submitted issues relating to estoppel and waiver.(370 S.W.2d 144).That Court also, in effect, held that the insurance company had sustained its defense of fraudulent representations and that except 'for another finding to be noticed,' would be entitled to judgment.(370 S.W.2d 143)The finding or findings thereafter discussed relate to plaintiff's specially pleaded grounds of recovery, namely, waiver and estoppel, which were not sustained by the facts and hence were not well taken.In our opinion none of the findings relating thereto would prevent a judgment being rendered in favor of the insurance company upon its fraudulent representations defense.However, plaintiff, in an effort to secure a reversal of the judgment of the Court of Civil Appeals and an affirmance of the trial court's judgment asserts, among other points, that the Court of Civil Appeals erred (1) in holding that 'a finding that a false representation was made when the maker knew or should have known its falsity was a finding of a conscious intent to deceive.'; (2)'in holding that the making of a false representation in an application for a life insurance policy when the maker merely 'should have known' its falsity was ground for vitiating the insurance contract', and (5)'in failing to hold that (the insurance company) failed to establish that the false representation was material.'

We thus have a squarely drawn issue.The defendant says that this Court should render judgment in its favor upon the jury's findings while the plaintiff asserts that no judgment should be rendered against her because the defense was improperly submitted to the jury because of the inclusion of the phrase 'or should have known' in Special IssueNo. 25.

In Clark v. National Life & Accident Insurance Company, 145 Tex. 575, 200 S.W.2d 820(1947), this Court said:

'It is the settled rule that, in order to avoid a policy, false statements must have been made willfully and with design to deceive or defraud.American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864;Great Southern Life Ins. Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197;Westchester Fire Ins. Co. v. Wagner, 24 Tex.Civ.App. 140, 57 S.W. 876'(writ denied).

In Great Southern Life Insurance Company v. Doyle, 136 Tex. 377, 151 S.W.2d 197(1941) it was held that one having syphilis but being unaware of such condition could not be said to have willfully made a representation as to the absence of the disease with an intent to deceive.

See also, American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864(1933);Colorado Life Co. v. Newell et al., Tex.Civ.App., 78 S.W.2d 1049(1935) writ refused;Pioneer Am. Insurance Co. v. Meeker, Tex.Civ.App., 300 S.W.2d 212(1957)ref. n. r. e.;21 Appleman Insurance Law and Practice, § 12122;11 Baylor LawRev. 236(1959).This means, as stated by Couch, that 'the insured must have made (the representations) with knowledge of their falsity or with an intent to deceive, otherwise the policy is not avoided by their falsity.'Couch on Insurance2d, § 37:101.

It is true, as pointed out by the Court of Civil Appeals, that in Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, supra, this Court used the words 'should have known' in connection with the statement of the rule relating to fraudulent representations in applications for insurance.It was said that:

'It is also well settled in this State...