Brotherhood of American Yeomen v. Hickey

• Decision Date: 29 December 1916
• Docket Number: (No. 1701.)
• Citation: 191 S.W. 162
• Parties: BROTHERHOOD OF AMERICAN YEOMEN v. HICKEY.
• Court: Texas Court of Appeals

191 S.W. 162

BROTHERHOOD OF AMERICAN YEOMEN v. HICKEY.

(No. 1701.)

Court of Civil Appeals of Texas. Texarkana.

December 29, 1916.

Rehearing Denied January 11, 1917.

Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.

Action by Mrs. Rhoda J. Hickey against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

The subject of this action is a policy of life insurance made upon the application of Algie B. Hickey, and by it the defendant, an incorporated fraternal beneficiary association, upon certain conditions undertook to pay to the plaintiff, his wife, upon his death the amount provided in the policy. The application, dated June 10, 1911, was a part of the contract, and the answers by the insured were warranted by him to be true. The application recites that the applicant agrees that the association shall understand that the answers are full, complete, and true, and that any untrue answer, concealment, misrepresentation, or suppression of insured's condition or habits, past or present, whether believed to be material or not, shall render the certificate of insurance null and void. Among those questions and answers were the following:

"1. Are you in good health at the present time? Answer: Yes."

"8. Have you consulted a physician during the past ten years? Answer: Yes. If so, give name, cause and date of consultation. Answer: Remittent fever; July, 1905. Have you fully recovered? Answer: Yes."

"15. Have you ever had any of the following: Consumption? Answer: No. Disease of the genital or urinary organs? Answer: No. Disease of the lungs? Answer: No."

"17. Have you had any illness, ailment or injury not herein mentioned? Answer: No."

The defendant pleaded as a defense, that those answers were false, untrue, and material, and that the consequence was a breach of the warranty. The answer alleges:

"That in truth and in fact the plaintiff's insured herein was not in good health at the time he executed his said application; that he had in the years 1909, 1910, and 1911 before the execution of said application consulted various physicians, who had examined him and found him suffering with tuberculosis; that in truth and in fact he was afflicted with consumption and with disease of the urinary organs; that said false and untrue answers above set out, and each of them, were material to the risk assumed; that, had the defendant association been given true and correct answers to the above questions, the benefit certificate herein sued on would not have been issued."

The case was tried before a jury on special issues, and in accordance with their findings of fact judgment was rendered by the court in favor of the plaintiff. Before the trial of the case the defendant filed a written admission, in accordance with the rules, that the plaintiff has a good cause of action as set forth in her petition, except so far as it may be defeated in whole or in part by the facts of the defendant's answer. The insured died of tuberculosis of the lungs August 10, 1914. The jury made the findings of fact: (1) That A. B. Hickey was in good health on June 10, 1911, the date of his application; (2) that A. B. Hickey was in good health on June 30, 1911, the date his insurance policy was delivered to him; (3) that A. B. Hickey did not have consumption either at the date of his application or at the date of the delivery of his policy to him; (4) that A. B. Hickey did not have any disease of the genital or urinary organs either before or at the date of his application; and (5) that A. B. Hickey did not have any illness or ailment except malaria and smallpox before the date of his application. Further, the following question was submitted: "Did A. B. Hickey consult any physician within the ten years preceding June 10, 1911? If so, who and for what ailment?" And the jury made answer thereto, "Yes, remittent fever."

The evidence respecting the issues submitted to the jury is conflicting; and therefore the findings of the jury, having sufficient evidence to support them, are adopted as the facts.

Lacy & Bramlette, of Longview, R. A. Sexton, of Marshall, and Jno. D. Denison, Jr., of Des Moines, Iowa, for appellant. S. P. Jones, T. P. Harte, and Michael Harold, all of Marshall, for appellee.

LEVY, J. (after stating the facts as above).

Appellant insists that the trial court should have granted the motion for new trial upon the ground that the weight and preponderance of the evidence show that the insured at the time of making his application and at the date of the policy had tuberculosis of the lungs and had a...