American Nat. Ins. Co. v. Lawson, 2229-7316.

• Decision Date: 26 April 1939
• Docket Number: No. 2229-7316.,2229-7316.
• Citation: 127 S.W.2d 294
• Parties: AMERICAN NAT. INS. CO. v. LAWSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

127 S.W.2d 294

AMERICAN NAT. INS. CO. v. LAWSON.^*

No. 2229-7316.

Commission of Appeals of Texas, Section A.

April 26, 1939.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by Willis A. Lawson against the American National Insurance Company on a life insurance policy. From an adverse judgment, the defendant appealed to the Court of Civil Appeals. On certified question from the Court of Civil Appeals.

Certified question answered.

W. B. Handley, of Dallas, for appellant.

R. C. Armstrong, Jr., of Fort Worth, for appellee.

HICKMAN, Commissioner.

The certificate by the Honorable Court of Civil Appeals, Second District, discloses that appellee was named as beneficiary in a policy of life insurance issued by appellant upon the life of his wife, Ethel Lawson. The suit is upon that policy. It was issued on September 10, 1934, for the sum of $240. Insured died on March 7, 1936, and the question of whether, under Art. 4732, R.S. 1925, subd. 3, the defense hereinafter to be considered would be available to appellant after two years from the date of the issuance of the policy is not involved. The answer setting up the defense was filed in July, 1936. At the time the policy was issued insured was afflicted with pulmonary tuberculosis and had been so afflicted for an unknown period of time prior to that date. She first learned of her affliction on September 20, 1934. The sole and immediate cause of her death was pulmonary tuberculosis. The policy contained this provision: "* * * provided however, that 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."

The question certified is as follows: "Should the stipulation in the policy sued on to the effect that no obligation is assumed by the company unless the insured be in sound health at the date of the policy, be construed as a condition precedent to the policy becoming effective in its entirety in the first instance or merely as an attempted limitation of the obligation of the insurer to pay the face value of the policy upon the death of the insured after the contract of insurance should become effective?"

From the tentative opinion of the Court of Civil Appeals accompanying the certificate it is made to appear that the doubt and uncertainty in the mind of that Court which prompted it to certify this case to this Court was brought about by its construction of the opinion of this Court in Atlanta Life Insurance Company v. Cormier, 126 Tex. 179, 85 S.W.2d 1045. The tentative opinion cites and discusses a number of cases which hold that provisions in policies of life insurance substantially the same as that quoted above are valid and may be invoked as defenses to suits upon such policies. The question was squarely before the Court in Wright v. Federal Life Insurance Company, Tex.Com.App., 248 S.W. 325, and it was held that such a stipulation is valid and enforceable. That decision has not been departed from, but has been followed in, among others, the following cases: American National Insurance Co. v. Melton, Tex.Civ.App., 29 S.W.2d 795; American National Insurance Co. v. Jarrell, Tex.Civ App., 50 S.W.2d 875; and American Nat. Life Insurance Co. v. Corley Co., Tex.Civ. App., 73 S.W.2d 598. The rule is well stated in the case last cited, from which we quote as follows: "* * * It is now well settled in this state that a stipulation in a life insurance policy that such policy shall not take effect...