American Nat. Ins. Co. v. Jarrell

• Citation: 50 S.W.2d 875
• Decision Date: 26 May 1932
• Docket Number: No. 2675.,2675.
• Parties: AMERICAN NAT. INS. CO. v. JARRELL.
• Court: Texas Court of Appeals

50 S.W.2d 875

AMERICAN NAT. INS. CO. v. JARRELL.

No. 2675.

Court of Civil Appeals of Texas. El Paso.

May 26, 1932.

Rehearing Denied June 16, 1932.

Appeal from County Court at Law No. 1, Dallas County; Paine L. Bush, Judge.

Action by Elizabeth Jarrell against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and judgment rendered for defendant.

W. B. Handley and C. J. Shaeffer, both of Dallas, for appellant.

John W. West and J. P. Miller, both of Dallas, for appellee.

WALTHALL, J.

This suit was brought by Elizabeth Jarrell, surviving wife of Uriel K. Jarrell, against the American National Insurance Company, on two life insurance policies of date, respectively, March 10, 1930, and September 22, 1930, each in the sum of $165, issued to Uriel K. Jarrell and in which Elizabeth Jarrell is named beneficiary. Jarrell died on November 16, 1930.

The insurance company refused payment, and the suit is to recover the amounts stipulated in the policies, the statutory 12 per cent. penalty and attorney fees.

Appellant, in answer, pleaded certain provisions of the policies; the only one involved here is that which provides: "No obligation is assumed by the Company prior to the date hereof, nor unless on said date the insured is alive and in sound health."

On special issues submitted, the jury found that Jarrell was not in sound health on the days of the issuance of the policies, and also found that Jarrell did not know that he was not in sound health on the dates of the issuance of the policies.

The evidence is such as to justify the submission of each of the above issues to the jury.

Appellant submits that, the jury having found that the insured was not in sound health on the effective dates of the insurance policies, no valid policy of insurance was effected, and the judgment should have been in favor of the insurance company.

Appellee in reply insists that, if Jarrell was not in sound health on the dates of the policies, the fact that he did not know it, his application for insurance on his statement that he was in sound health would not be fraudulent, or void, and for that reason judgment was properly rendered in her favor.

It is true, as suggested by appellee, that, where he did not know he was not in sound health at the time of his application for the policies, his statement that he was in sound health would not be positive fraud on his part, but the condition precedent to liability as provided in the policy being that "the Company assumes no liability whatever under this policy unless on the date of the revival the insured is in sound health and insurable according to the Company's standard of insurability, as provided at original date," the pivotal point of...