American Nat. Ins. Co. v. Allen, 4154

Decision Date08 August 1963
Docket NumberNo. 4154,4154
Citation370 S.W.2d 140
CourtTexas Court of Appeals

Beard, Kultgen & Beard, Waco, for appellant.

Dunnam & Dunnam, Waco, for appellee.

WILSON, Justice.

Appellee, as beneficiary, recovered judgment on a jury verdict in her action on a life insurance policy issued by appellant August 16, 1961 insuring the life of her husband.

Insured applied for the insurance August 4, 1961, and was given a medical examination by Dr. Lattimore, a general practitioner employed by appellant for that purpose. His report recited that after careful inquiry and examination of insured he found no evidence of past or present disease of heart or blood vessels. In his written statement to the medical examiner insured answered 'No' to questions as to whether he had ever had or been treated for dizziness, high blood pressure, diseases of the heart, chest pain, or other physical disorder (except 'glasses') and answered that he was in good health. He answered 'Yes' to the question: 'Have you ever had X-ray, electrocardiogram, blood sugar, or any special laboratory tests'? The explanation to this answer as written by Dr. Lattimore and signed by insured recited, 'Chest X-Ray, State Health Department, Mobile Unit, 1956 at St. Petersburg, Fla., found O. K.' and 'nervous indigestion a week or 10 days 1957. Full recovery lost 2 or 3 days. No recurrence. No sequelae. Dr. C. C. Smith, Waco, Texas.'

There was evidence to show that insured consulted Dr. Smith, a heart specialist, in May, 1957, complaining of recurrent chest pains and numbness radiating into left shoulder and arm, and that his electrocardiogram was 'not normal'; that he gave a history of previous chest pain diagnosed by a Houston physician as coronary artery disease. Dr. Smith prescribed an antispasmodic and pavorel phosphate, drugs used in treatment of coronary diseases to dilate the coronary blood vessels. In November, 1957 he was admitted to a hospital with abnormally high blood pressure under confirmed diagnosis of acute myocardial infarction and arteriosclerotic heart disease, having suffered an occlusion. After 10 days' treatment he was dismissed from the hospital, and was at home about 30 days. A part of the heart muscle had died, being replaced by scar tissue. The following January and November he was again examined after complaining of continued substernal chest pain. In July, 1959 he reported to Dr. Smith an attack of severe weakness with cramping, but the examination showed his condition to be normal. In March, 1960 insured was again examined by Dr. Smith, complaining of a severe chest pain and symptoms the doctor said were commonly associated with heart disease, for which medication used in treating heart disease was prescribed. No evidence of acute myocardial damage was noted. In March, 1961 he was again examined, with symptoms of weakness, dizziness and radiating chest pain. In November of that year Dr. Smith again examined him, the complaints being the same. An antispasmodic, belladona, phenobarbital and duotrate for treatment of heart disease were prescribed. He was then suffering from heart disease, according to Dr. Smith. Insured was not seen by Dr. Smith from that time until he died in the hospital in July, 1962, the cause of death being given as acute myocardial infarction. Dr. Smith states that in his opinion insured was suffering from arteriosclerotic heart disease 'from 1957 on'; that heart damage from a first such attack reduces heart reserve so that succeeding attacks are more likely to be fatal; that there was no way to cure the arteriosclerotic condition after it occurred.

The beneficiary testified she never knew insured had heart trouble; that he never had an attack of indigestion that caused him to go to a doctor, but he went to the doctor in 1957 because 'he lifted too heavy a load of far and he was supposed to climb this ladder with it and he went for heart strain'; that when insured went to the hospital the doctor told her 'he had just strained some ligaments around his heart and all from lifting too heavy', and that her husband was 'aware that this was what was wrong with him.'

The physician making the insurance medical examination for appellant testified he did not talk to Dr. Smith at the time of making his report. Dr. Smith testified he had no recollection of having talked to the examining doctor.

Appellant says it is entitled to judgment because the jury found insured 'intentionally answered 'no' to the question' in the application inquiring whether he had ever had chest pain or disease of the heart; that the answer was false; that insured knew or should have known the answer was false; that insured so answered for the purpose of inducing appellant to issue the policy; and that the company relied on the answer in issuing the policy. The jury also returned a negative answer to an issue inquiring whether the condition of insured's heart and arteries when the policy was issued was one of the causes of his death, but answered affirmatively that the acute myocardial infarction he sustained in 1957 made his death from a later myocardial infarction more likely.

Appellant says that these findings by the jury established its pleaded defense and precluded recovery. Appellee replies that it was necessary to obtain a specific finding of 'intent to deceive', and that without this finding the defense is incomplete. Appellee made no objections to the charge. Appellee relies on Pioneer American Ins. Co. v. Meeker, Tex.Civ.App., 300 S.W.2d 212, writ ref. n. r. e.; Roosth v. American General Life Ins. Co., Tex.Civ.App., 330 S.W.2d 652, writ ref. n. r. e.; Universal Life & Acc. Ins. Co. v. Burden, Tex.Civ.App., 294 S.W.2d 855, no writ; Colorado Life Co. v. Newell, Tex.Civ.App., 78 S.W.2d 1049, writ ref.; Great Southern Life Ins. Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864. These and other decisions, it is true, contain language to the effect that the misrepresentation must have been made with intent to deceive. None of these cases, with one exception to be noted, may be said to support appellee's position that it is necessary to submit this element as an issue so worded.

In the Alexander case the insurer did not plead that 'the insured's answers were intentionally made', and the trial court's action in sustaining special exceptions was held to be proper. In the Doyle case the jury specifically found insured did not know her answers were false and that she did not make them for the purpose of inducing the company to insure. In Meeker, a suit to cancel, no issue was submitted on intent except as to intent to deceive, and the jury made a negative finding. There were further findings, however, that insured did not know the answers were false, that he could not have known that a physician had found his blood pressure was above normal, and that although he could have known the falsity of a representation concerning the last doctor to examine him, the question was not particularly called to his attention. It was found the insurer 'was in possession of facts sufficient to put it on notice as to the truth or falsity of the representations.' In...

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4 cases
  • Allen v. American Nat. Ins. Co.
    • United States
    • Texas Supreme Court
    • June 3, 1964
    ...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 o......
  • Randle v. NCNB Texas Nat. Bank
    • United States
    • Texas Court of Appeals
    • June 24, 1991
    ...F.2d 654, 661 (7th Cir.1941); Ward v. Clark, 435 S.W.2d 621, 624 (Tex.Civ.App.--Tyler 1968, no writ); American Nat'l Ins. Co. v. Allen, 370 S.W.2d 140, 143 (Tex.Civ.App.--Waco 1963), rev'd on other grounds, 380 S.W.2d 604 (Tex.1964). The Randles' second point of error is The Randles' first ......
  • Securities Inv. Co. of St. Louis v. Finance Acceptance Corp.
    • United States
    • Texas Court of Appeals
    • October 28, 1971
    ...breach, representation, or failure. Cantrell v. Garrett, 342 S.W.2d 466 (Tex.Civ.App.--Houston (1st Dist.) 1961); American National Insurance Company v. Allen, 370 S.W.2d 140 (rev'd on other grounds 380 S.W.2d We also are in agreement with appellant's contention that there is no legal theor......
  • Ward v. Clark
    • United States
    • Texas Court of Appeals
    • November 21, 1968
    ...tribunals.' * * *' Scoby v. Sweatt, 28 Tex. 731; Masterson v. Little, 75 Tex. 682, 13 S.W. 154; American National Insurance Company v. Allen, (Tex . Civ.App.) 1963, 370 S.W.2d 140, reversed on other grounds, 380 S.W.2d 604. As we view the evidence, the proof fails to show any substantial re......

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