Bankers Life Co. of Des Moines, Iowa v. Butler

• Decision Date: 01 December 1938
• Docket Number: No. 10656.,10656.
• Citation: 122 S.W.2d 1077
• Parties: BANKERS LIFE CO. OF DES MOINES, IOWA, v. BUTLER.
• Court: Texas Court of Appeals

Page 1077

122 S.W.2d 1077

BANKERS LIFE CO. OF DES MOINES, IOWA, v. BUTLER.

No. 10656.

Court of Civil Appeals of Texas. Galveston.

December 1, 1938.

Rehearing Denied January 5, 1939.

Appeal from District Court, Houston County; Sam Holland, Judge.

Action on two life policies by Frank H. Butler against the Bankers Life Company of Des Moines, Iowa, wherein Dr. C. W. Butler, administrator of the estate of Frank H. Butler, deceased, was substituted as plaintiff after the death of his intestate. From a judgment for the plaintiff, defendant appeals.

Reversed and remanded.

Aldrich & Crook, of Crockett, and Vinson, Elkins, Weems & Francis and Frank G. Dyer, all of Houston, for appellant.

G. W. Allison, of Athens, and Justice & Justice, of Athens, for appellee.

MONTEITH, Special Commissioner.

This is an appeal from a judgment of the district court of Houston County in favor of appellee, plaintiff below, entered in conformity with the verdict of a jury on special issues.

The action was originally filed by Frank H. Butler against appellant, Bankers Life Company of Des Moines, Iowa, on two insurance policies on the life of his wife, Mrs. Jettie W. Butler, each dated July 14, 1928, and each for the principal sum of $1000. Subsequent to the filing of the suit, Frank H. Butler, the plaintiff and beneficiary under said policies, died and Dr. C. W. Butler, Administrator of his estate, was substituted as plaintiff.

Plaintiff alleged that Mrs. Jettie W. Butler died on March 26, 1930; that the premiums on both policies were paid, and that each of said policies was in full force and effect at the time of her death; that Frank H. Butler, then plaintiff, furnished defendant with proof of the death of Mrs. Butler and demanded that defendant pay him the $2000. which he alleged was due on said policies, which defendant failed and refused to do.

Appellant answered, denying the allegations of plaintiff's petition and pled specifically that it had executed the two policies of insurance sued on, but that said policies had lapsed on several occasions on account of the failure of the insured to pay the premiums due thereon, under the terms of said policies; that on or about December 14, 1929, Mrs. Butler again applied for reinstatement of said two policies and tendered appellant the balance due on said premiums; that in said application, which was in writing, Mrs. Butler agreed that each of said policies had lapsed prior to December 14, 1929, and warranted, among other things, that she was in good health; that she had not been ill or injured within five years; and that she had not consulted, been treated by, or attended by a physician, surgeon, or practitioner within five years. Mrs. Butler further agreed in said application for reinstatement that said statements should be considered as warranties, and that they were made for the purpose of securing reinstatement of the two policies, and that said reinstatement should be void if said statements were untrue in any respect. Appellant further alleged that in reinstating said policies, it believed and relied upon the truth of said statements; that after Mrs. Butler's death, it ascertained for the first time that said statements were untrue and false, and that it had tendered into court the full amount of the premiums due on July 14, 1929, the date when said two policies first lapsed.

It is the contention of appellant that the findings of the jury in response to the six issues submitted were so contrary to the great weight and preponderance of the evidence as to show that the verdict was based on prejudice or some other improper motive; that reversible error was committed by the failure of the trial court, on application of appellant, to allow certain photostatic copies of the records of the Methodist Hospital of Houston, Texas, attached as exhibits to the deposition of Mrs. Josie M. Roberts, to be detached from said deposition so that the jury might be permitted to take such exhibits to the jury room and have them available during their deliberations. Appellant contended that the records in question were the permanent records of said Methodist Hospital, that they were identified by Mrs. Roberts, who testified for appellant, and that each of said exhibits were introduced in evidence independently of the deposition of Mrs. Roberts, and were identified by R. C. Lansberry, who made said records, and that said records reflected the fact that Mrs. Butler had on numerous occasions been a patient in said Methodist Hospital for treatment.

Appellant further...