American Nat. Ins. Co. v. Melton

• Citation: 29 S.W.2d 795
• Decision Date: 17 October 1929
• Docket Number: No. 9328.,9328.
• Parties: AMERICAN NAT. INS. CO. v. MELTON et al.
• Court: Court of Appeals of Texas

29 S.W.2d 795

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

No. 9328.

Court of Civil Appeals of Texas. Galveston.

October 17, 1929.

Appeal from County Court at Law No. 2, Harris County; Ray Scruggs, Judge.

Action by Mrs. Ada Melton and husband against the American National Insurance Company. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded for a new trial.

Frank S. Anderson, of Galveston, and Kennerly, Williams, Lee, Hill & Sears and W. H. Blades, all of Houston, for appellant.

Geo. W. Dixon, of Houston, for appellees.

GRAVES, J.

This appeal by the insurance company is from a judgment against it in favor of appellee, Mrs. Melton, for $500, with 6 per cent. interest and a 12 per cent. penalty for nonpayment, upon a policy issued by it under date of March 22, 1926, upon the life of Mrs. Maggie Wiggins, in which Mrs. Melton was named as beneficiary. The policy, issued upon an application which omitted the warranty usually contained therein, embraced the entire agreement between the company and the insured, and 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 judgment followed the submission of the cause to a jury and its affirmative answer to the special issue, "Was the deceased, Maggie Wiggins, in sound health on March 22, 1926?" to which there was appended this definition:

"In this connection you are charged that:

"`Sound health' means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, not a mere temporary indisposition, which does not tend to weaken or undermine the constitution of the assured. Sound health means freedom from serious disease, or grave, important, weighty trouble."

No objection was made by either party to the quoted definition, but the appellant challenges in this court the adverse recovery upon the ground, among others, that the verdict of the jury answering the special issue, "She was," is so against the great weight and preponderance of the evidence as to be clearly wrong.

This contention must be sustained. The appellees declared upon the policy so dated, basing their action solely upon the contract of insurance thereby evidenced, although they sought to contend that the policy had been delivered to the deceased on the 15th day of March, 1926, rather than upon its date, March 22, 1926. This, however, was shown to be an immaterial matter, since the written receipt from the company of the initial payment of the premium on the policy of date March 8, 1926, covered advanced premiums thereon for the two weeks intervening between that date and March 22d following, with provision that the policy itself might be thereafter issued and delivered to the applicant, provided she was then alive and in sound health, at any time within four weeks thereafter. Thus the appellees were bound by their declarations upon the policy as issued and dated, and by the trial court's fixing that as the time of the inquiry submitted to the jury, especially as they did not object to the special issue on that ground.

The question of whether or not the insured, Maggie Wiggins, was in sound health is therefore referable solely to the date of the policy, March 22, 1926. If at that particular time she had any such serious condition as the trial court's so acquiesced in definition comprehends, with which this court, subject to its own hereinafter stated interpretation of it, finds no fault, the policy never became effective as a contract of insurance, under its express terms. While the evidence on the issue was in conflict, the weight of that against the finding made by the jury seems to this court so strong that, in the exercise of its peculiar province, it is unable to affirm the judgment based thereon.

As applied to contracts of life insurance, we think there should also, in addition to the elements so defined by the trial court, be read into the terms "in sound health" at the time of the delivery of the policy a mutual contemplation of something material to what the parties are contracting about, or to the risk thereby being assumed; that is, such a then existing infirmity as does thereafter constitute at least a contributing cause thereof, should death ensue during the life of the contract.

So construing the scope of the quoted stipulation, the state of the evidence, in view of a reversal, will be only briefly outlined.

These facts undisputedly appeared: Mrs. Wiggins, accompanied by Mrs. Melton, the appellee, who was her sister and beneficiary under the policy in suit, went to the office of Dr. Barnes in Houston about March 14, 1926. He examined her at that time, finding a tumor which he testified on this trial "filled the vagina, was bleeding, and causing her considerable pain." He called Mrs. Melton into the room to look at it, and she testified about the matter: "When I went in there I saw a little tumor; I saw an object between the size of a nickel and a quarter, I suppose, and it was a gray object. I do not know what a fibroid tumor is. I do not know what a tumor of the vagina is."

About March 17, 1926, Mrs. Wiggins quit work at the laundry where she had uninterruptedly been serving for more than two years, complaining to her employer that she was sick, and on the next day, March 18, 1926, was operated on at a hospital, Dr. Barnes removing the tumor already found from the vaginal tract. After remaining in the hospital under treatment for several days, she was discharged on his orders on March 21, 1926, and returned with Mrs. Melton to the latter's home, where she lived. She never thereafter returned to work at the laundry, but did attend to her household duties around her sister's home. Dr. Barnes never saw her any more.

She died at Beaumont, Tex., August 27, 1926, under medical attendance of Dr. Sherrill, who issued certificates to that effect, therein reciting the immediate cause of her death to have been "cancer uterus," and the duration of her illness from it to have been "since July 15, 1926 (from personal knowledge); several months (from history of the case)."

Both Drs. Barnes and Sherrill pointedly testified that they had at the time of their several services to the insured positively diagnosed her trouble as cancer. Dr. Barnes' conclusion is summed up in these excerpts:

"Prior to the operation we did not know what the nature of this tumor was; it could have been one of several things, but upon...