American Bankers Life Ins. Co. v. Pate

• Decision Date: 23 April 1942
• Docket Number: No. 2425.,2425.
• Citation: 161 S.W.2d 587
• Parties: AMERICAN BANKERS LIFE INS. CO. v. PATE.
• Court: Texas Court of Appeals

161 S.W.2d 587

AMERICAN BANKERS LIFE INS. CO. v. PATE.

No. 2425.

Court of Civil Appeals of Texas. Waco.

April 23, 1942.

Appeal from District Court, Falls County; Terry Dickens, Judge.

Action by John A. Pate against the American Bankers Life Insurance Company on a life policy. From a judgment for plaintiff, the defendant appeals.

Reversed and judgment entered for defendant.

Cecil R. Glass, of Marlin, for appellant.

Bartlett & Bartlett, of Marlin, for appellee.

HALE, Justice.

John A. Pate sued American Bankers Life Insurance Company, a statewide mutual operating under Art. 4859f, Vernon's Ann.Tex.Civ.Stats., for $1,000 claimed to be due on a policy issued to his deceased wife. Defendant answered with a general denial and alleged facts showing that the policy sued upon was void under its terms because the insured was not in good health at the time said policy was applied for or at the time it was delivered. The case was tried before the court without a jury and resulted in judgment for plaintiff in the sum of $251.75. Defendant has appealed.

On July 11, 1940, Mrs. Pate made written application to appellant for the issuance of a policy on her life in the sum of $1,000, with appellee as beneficiary, in which she warranted that she was then in good and vigorous health, free from all bodily diseases and ailments, and agreed that if she was not in good health at the time of the delivery and acceptance of said policy she thereby forfeited any benefits accruing thereunder. On July 17, 1940, appellant accepted said application and attached a copy thereof to its policy as issued. The policy clearly provided, among other things, that if the insured should not be in good and vigorous health at the time of its delivery, then in that event the same should be null and void and of no force and effect; that if the insured should die within one year from the effective date of said policy as a result of certain diseases, including cancer, then in that event the benefits thereunder should not exceed one-fourth of the amount otherwise payable, plus the return of all amounts paid thereon while said policy was continuously in force. The insured paid one monthly premium in the sum of $1.75 with her application, which appellant later offered to return but which was refused.

The trial court filed findings of fact and conclusions of law in which he set forth the terms of the application and policy hereinbefore referred to and in addition thereto found in accordance with the undisputed evidence substantially as follows: that on July 11, 1940, and continuously thereafter to the time of her death, the insured was not in good health, but was on all of said dates under the care of physicians and was suffering constantly from a cancer of the uterus and died as a direct result of said cancer on August 19, 1940; that appellant relied upon the statements made in the application with reference to the physical condition of the insured, which statements were material to the risk, and it would not have...