American Nat. Ins. Co. v. Anderson

• Decision Date: 09 June 1915
• Docket Number: (No. 6930.)
• Citation: 179 S.W. 66
• Parties: AMERICAN NAT. INS. CO. v. ANDERSON et al.
• Court: Texas Court of Appeals

179 S.W. 66

AMERICAN NAT. INS. CO. v. ANDERSON et al.

(No. 6930.)

Court of Civil Appeals of Texas. Galveston.

June 9, 1915.

Rehearing Denied October 7, 1915.

Appeal from Galveston County Court; George E. Mann, Judge.

Action by Jane Anderson and husband against the American National Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for defendant.

Wilson & Webb and Williams & Neethe, all of Galveston, for appellant. O. S. York, of Galveston, for appellees.

McMEANS, J.

Jane Anderson, joined by her husband, John Anderson, brought this suit in the justice court of Galveston county against the American National Insurance Company to recover $147 which she alleged to be due her as beneficiary in an insurance policy issued by defendant on the life of Leon Anderson, her son. A trial resulted in a judgment for plaintiff for the amount sued for. Defendant appealed to the county court, where, upon a trial before the court without a jury, judgment was again rendered in plaintiff's favor for the amount sued for, from which judgment the defendant has prosecuted an appeal to this court. The record does not disclose what defenses, if any, were pleaded by the defendant in the justice court. In the county court it pleaded that the policy in question was obtained by the insured through fraud and misrepresentations, in that the answers of the insured to the questions in his application for insurance, which application constituted a part of the policy, were false, and were known to the insured to be false, and were made for the purpose of obtaining the policy and of defrauding the defendant. No exception was urged to this pleading.

Appellant by its first assignment of error complains that the court erred in rendering judgment for the plaintiff, for the reason that the policy sued on contains the provision that no obligation was assumed by the appellant company prior to its date, nor unless the insured should be alive and in sound health on the date of its delivery, and that uncontradicted evidence showed that on the date the policy was delivered the insured was not in good health. If, in fact, the policy contained such a provision, and if, in fact, the insured was not in sound health at the time of its delivery, this, if pleaded, would constitute a good defense to plaintiff's suit. Metropolitan Life Ins. Co. v. Betz, 44 Tex. Civ. App. 557, 99 S. W. 1140. But this defense, to be available to the defendant, must have been pleaded in the trial court, and, not having been pleaded there, it cannot be urged for the first time in the appellate court. The assignment, for this reason, must be overruled.

The second assignment complains of the action of the court in rendering judgment for plaintiff on the evidence adduced, for the reason that the insured, Leon Anderson, at the time of making application for insurance, was suffering from pulmonary tuberculosis, and so knew, but, when questioned, stated in his application that he did not have such disease; that such misrepresentation was material to the risk; and that therefore the court should have rendered judgment for the defendant.

On December 11, 1913, Leon Anderson applied to defendant for a policy of insurance upon his life. In his written application he made answers to questions, as follows:

"When last sick? Answer: No. What is the present condition of health? Answer: Good. Does any mental or physical defect exist? Answer: No. Has the life proposed ever suffered from consumption, etc.? Answer: No. State what disease. Answer: None."

The testimony shows without dispute that at the time the applicant made these answers he was suffering from pulmonary tuberculosis, or consumption. On this point Dr. W. L. Hoecker testified:

"I treated and attended Leon Anderson during his lifetime. I first treated Leon Anderson on the 24th day of November, 1913. He called at my office. I examined him, and found that he was suffering from pulmonary tuberculosis, a large cavity in his right lung. I told him at that time that he had a very bad lung. * * * I saw Leon Anderson again on the 1st day of December. I saw him no more until the 28th day of February, and again on March 2d, and he died on March 3d. He died of pulmonary tuberculosis."

On cross-examination he testified:

"In November I told the boy he had a bad lung. I saw him again in December and told him he had tuberculosis."

The policy sued on contained this provision:

"All statements made by the insured in the application herefor shall, in the absence of fraud, be deemed representations and not warranties."

This provision is required, by subdivision 4 of article 4741 of the Revised Statutes 1911, to be written in all policies of life insurance, and, no doubt, was written in the policy in question in obedience to the statute.

It is shown by the undisputed testimony that Leon Anderson was not in good health at the time he made his application for insurance, and that at said time he was afflicted with consumption, and it necessarily follows that his representations that he was then in good health and that he had never had consumption were false. It is further shown without contradiction that the appellant did not discover the falsity of the representations until after the death of the insured, and that it then promptly gave notice to the beneficiary that it refused to be bound by the contract of insurance. R. S. art. 4948.

Article 4947, Revised Statutes 1911, provides:

"Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of...