American Casualty & Life Co. v. Butler

• Decision Date: 18 November 1948
• Docket Number: No. 12006.,12006.
• Citation: 215 S.W.2d 392
• Parties: AMERICAN CASUALTY & LIFE CO. v. BUTLER.
• Court: Texas Court of Appeals

Page 392

215 S.W.2d 392

AMERICAN CASUALTY & LIFE CO. v. BUTLER.

No. 12006.

Court of Civil Appeals of Texas. Galveston.

November 18, 1948.

Rehearing Denied December 9, 1948.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Paul L. Butler against the American Casualty & Life Company to recover sick benefits on a health and accident policy issued by the defendant to the plaintiff's deceased father as insured. From a judgment for the plaintiff, the defendant appeals.

Judgment affirmed.

John C. Ridley, of Houston, and Chaney & Davenport, of Dallas, both for appellant.

Carl F. Hendrix and Thos. M. Phillips, both of Houston (Baker, Botts, Andrews & Parish, of Houston, of counsel), for appellee.

CODY, Justice.

This is an action to recover sick benefits on a health and accident insurance policy which was issued by appellant insurance company on August 20, 1945, to appellee's father, as the insured. Appellee was the sole heir of his father, and sole beneficiary under the policy, and his petition alleged that the insured suffered total disability to perform any duty pertaining to his occupation, which disability began about October 15, 1945, and appellee further alleged that such disability resulted solely from cancer of the bronchus and lung, and that said total disability continued until the insured's death, which occurred on August 19, 1946.

Appellant by its answer affirmatively pled, as avoiding liability by the terms of the policy, among other things: (a) That the insured's disability resulted from heart trouble which had its beginning less than six months from the date of the policy. (b) That the cause of illness which produced the insured's disability had its beginning within the 30 days waiting period and by the terms of the policy was excluded. (c) That appellee failed to give written notice of insured's sickness within ten days after the commencement of insured's disability, and that such notice was by the terms of the policy, a condition precedent to appellant's liability thereunder. (d) That the policy required that appellant be furnished with a physician's statement of the insured's condition at the end of each thirty days disability, and that such statements were furnished to appellant only as of December 1, 1945, and March 9, 1946.

At the conclusion of the trial, which was before a jury, both parties moved for a directed verdict. The court granted appellee's motion, and judgment was accordingly rendered for appellee. — It should be stated in this connection that appellant's evidence was confined to proof that it was a mutual insurance company and not liable for statutory penalties and attorney's fees for refusal to pay appellee's claim.

Appellant has predicated its appeal on five points. For the sake of brevity we have edited said points, and reduced them to the following three points.

I. That the undisputed evidence established that the insured was suffering from heart trouble and high blood pressure, and that his disability, at least in part, resulted therefrom, and disability from said cause was excluded by the terms of the policy.

II. That the undisputed evidence established that no written notice of the insured's disability within ten days of its beginning was given appellant as required by the policy, and also the medical reports at intervals of thirty days were not furnished appellant as required.

III. That appellee's evidence was insufficient to compel a jury finding that assured's cancer and resulting disability did not originate within 30 days of the date of the policy. That is, appellee's evidence was insufficient to affirmatively establish that the disability was not within a clause which excluded coverage.

We overrule appellant's first point, and find that the evidence was sufficient to compel the conclusion that the insured's total disability resulted from cancer.

The policy contained these provisions, which are pertinent to the first point:

"This policy provides indemnity * * * for loss of time resulting from sickness, to the extent herein provided."

"(3) Total Disability Sickness. If such sickness shall necessarily cause total disability and total loss of time and prevent the insured from performing every duty pertaining to any business of occupation, the Company will pay for the period of such disability beginning with the first day of disability at the rate of $100.00 per month but not to exceed a total of thirty months."

The policy contains this exclusion:

"4. Any disability resulting wholly or partly from tuberculosis, heart trouble or high blood pressure, shall be covered only if the disease originates more than six months after the date of this policy, or the date of any reinstatement after lapse thereof."

The non-medical evidence showed that the insured was a man 60 years of age, and that he had had regular and steady employment as a salesman for from 12 to 16 years before his disability began on or about October 15, 1945. That he had been active and interested in recreation, taking long walks, and otherwise leading a normal life, and that he suffered from no visible ailments, and had had no occasion to consult a doctor for many years. On October 15, 1945, he became ill and confined to the bed for the greater part of the day, and remained disabled to work at his occupation until his death which occurred on August 19, 1946.

He consulted Dr. Frachtman, a specialist in internal medicine, including diseases of the heart, lungs and stomach, on November 8, 1945. From the history which the insured gave Dr. Frachtman, and from a physical examination, Dr. Frachtman first diagnosed the insured's trouble as heart disease, high blood pressure and hardening of the arteries, and treated him therefor, and the insured favorably responded to the treatment. But on November 23, 1945, the doctor decided there was to much fluid in the chest to be accounted for on the basis of heart trouble, and on removing the fluid found blood in it, and suspected a cancer condition. On December 14, 1945, the laboratory reported the presence of cancer cells in the fluid specimen. And it was definitely determined that the insured had a cancer of the bronchus and lung, and that it had been caught in as early a stage as it could be recognized and diagnosed. The insured's heart condition would have prevented surgery. But in the type of cancer from which the insured suffered, surgical treatment was not indicated, for the cancerous condition could not be eradicated. Had the insured been suffering from the heart disease and hardening of the arteries alone, treatment would have restored him from disability to work at his occupation. A fair summary of Dr. Frachtman's testimony, given upon the trial, may be stated in language he used in his letter of May 10, 1946. "In my opinion the cause of Mr. Butler's disability is the cancer of the bronchus and lung. The hypertensive cardio-vascular disease is considered to be a minor and secondary finding in the presence of a proven malignancy of the bronchus and lung. Furthermore, it is felt that the primary disease, namely the cancer of the bronchus and lung, directly exerted an unfavorable influence on the hypertensive cardio-vascular disease." On the trial he testified that he considered the cancer as part of the influence of the heart condition; that in this case the cancer contributed to aggravate the existing heart disease; that hardening of the arteries is of slow development. The following question was asked him, which he answered as indicated. Q. "Would you say that the heart condition you found on November 8, 1945 (when he first saw the insured) was acute or of a chronic condition?" A. "Chronic." He also volunteered when questioned by the court, "I feel that he (the insured) could have returned to work after the heart disease and high blood pressure had gotten better."

From the foregoing evidence it is clearly established that the insured suffered from total disability at all times from October 15, 1945, until his death on August 19, 1946. (By way of parenthesis, it should be stated that the immediate cause of death was neither the heart condition, nor the cancer.) To all appearances, and in the normally accepted sense of the word, the insured was of sound health up until October 15, 1945. But his heart condition was chronic, and the hardening of his arteries was of slow development, so that, scientifically or medically speaking, he was not free of disease when he obtained his insurance. While no such evidence has been pointed out in the briefs of the parties, the inference is that a medical examination would have disclosed the insured's condition at the time he obtained the policy. But the policy did not require that the insured be free of heart disease. It merely excluded, in this connection, from coverage "Any disability resulting wholly or partly from * * * heart trouble or high blood pressure" unless such disease originated more than six months after the date of the policy.

Since the appellant company specifically pled the exclusion, the burden was on the appellee to prove that the total disability, insured against by the policy, did not wholly or partly result from the heart condition. The medical testimony established that, but for the cancer, the insured would not have been incapacitated to perform the duties of his employment, and that if the unfavorable influence of the cancer could have been eradicated, that the heart condition which it had aggravated would have improved, and that the insured could have returned to work. "Seldom does one have a serious physical ailment not complicated by other diseases or physical disturbances; and if proof of a pre-existing disease, or of some concurrent ailment, would prevent recovery for disability caused solely by another disease flowing therefrom and a consequence thereof, for and during the period when the last disease was the sole then existing cause of the disability of...