Colorado Life Co. v. Newell

Decision Date17 January 1935
Docket NumberNo. 3107.,3107.
Citation78 S.W.2d 1049
PartiesCOLORADO LIFE CO. v. NEWELL et al.
CourtTexas Court of Appeals

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by Wesley B. Newell against the Colorado Life Company, in which the Weever Funeral Home, Schaeffer-Weever, Incorporated, intervened. From judgment in favor of plaintiff, defendant appeals.

Affirmed.

R. H. Walker, of Denver, Colo., and E. B. Comer and S. C. Rowe, both of Fort Worth, for appellant.

Burgess, Chrestman & Brundige, Pat Howe, and L. E. Elliott, all of Dallas, for appellees.

PELPHREY, Chief Justice.

On March 14, 1931, appellant issued a policy on the life of Zuma Estella Newell in the sum of $1,000, with Wesley B. Newell, as beneficiary. The policy was issued without any medical examination being made of the insured.

On April 18, 1932, Mrs. Newell made an application to appellant for reinstatement of the policy, the application in part reading:

"I hereby apply for reinstatement of my policy known as No. 23,410, in your Company, dated on or about the 14th day of March, 1931, which said policy I understand, is now lapsed.

"As a condition precedent to the reinstatement of said policy, I do hereby certify that the following answers and statements are full, complete and true and that I understand that each of them is material to the risk which you assume should said policy be reinstated."

"Question 1: Have you had since said policy was issued and delivered, any disease, ailment, injury or complaint of any kind? Answer `Yes' or `No.' Answer: `No.'"

"Question 3. Are you now in every respect free from disease, injury and/or complaint? Answer `Yes' or `No.' Answer: `Yes.'"

On the afternoon of April 18, 1932, Mrs. Newell went to the office of Dr. Cowart for a physical examination. The examination revealed that she was suffering from a retroal or backward displacement of the uterus. She was operated on the following day and the postoperative diagnosis showed a chronic adherent bilateral salpengitis with retroal displacement of the uterus or, in common language, a long continued clinging together of the tubes leading from the womb to the ovaries, a dislocation of such tubes and a backward displacement of the uterus. Mrs. Newell died on the 13th day of May, 1932, and her husband filed this suit on July 13th, thereafter. On January 2, 1934, following, the Weever Funeral Home, Schaeffer-Weever, Inc., intervened alleging an assignment to it of the policy in payment of its charges for services in connection with Mrs. Newell's funeral. It further alleged that when the assignment of the policy was offered to it, it communicated with Floyd L. Towler, general agent for appellant, in the Dallas district, and asked him to advise it as to whether or not the policy was in force and effect and whether it would be paid; that said Fowler, thereupon, advised it that the policy was in force and effect and would be paid upon proof of loss and surrender of policy; that intervener, relying upon such advice, performed the funeral service, including casket and other necessaries at an agreed price of $650, for which sum assignment of the policy was taken.

Appellant defended the suit on the theory that Mrs. Newell made false statements as to her physical condition in her application for reinstatement; that she knew such statements to be false; that if she did not know at the time of making the application that she was suffering from a disease, injury, ailment, or complaint, she ascertained such fact before the acceptance of her application, and it thereupon became her duty to inform appellant of said condition, and that the withholding of such information constituted fraud upon appellant.

In response to issues the jury found that Mrs. Newell at the time of making the application was suffering with an ailment, injury, or complaint; that she was not aware of such fact; that after being advised by the doctor of her condition, she did not conceal such facts from appellant for the fraudulent purpose of securing a reinstatement of the policy; and that a reasonable attorney's fee in the suit was $250.

A verdict was instructed against the Weever Funeral Home, and upon the above findings a judgment in favor of Wesley B. Newell for $1,000, the face of the policy, $120 penalty, and $250 attorney's fees, was rendered.

This appeal is from the latter judgment.

Opinion.

While this case was pending in the Court of Civil Appeals for the Fifth district a...

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  • Am. Nat'l Ins. Co. v. Arce
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    • Supreme Court of Texas
    • April 28, 2023
    ...... . which provides that "[a] misrepresentation in an. application for a life, accident, or health insurance policy. does not defeat recovery under the policy unless the. ... 1941) (reinstatement application for life insurance);. Colo. Life Co. v. Newell , 78 S.W.2d 1049, 1051 (Tex. Civ. App.-El Paso 1935, writ ref'd) (life insurance);. ... . [ 19 ] See supra notes 14 &. 18. . . [ 20 ] Colorado County v. Staff ,. 510 S.W.3d 435, 444 (Tex. 2017). . . [ 21 ] Id . . ......
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    ...S.W.2d 820, 822–23 (1947); Great S. Life Ins. Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197, 201 (1941); Colo. Life Co. v. Newell, 78 S.W.2d 1049, 1051 (Tex.Civ.App.-El Paso 1935, writ ref'd). In 1980, in Mayes v. Massachusetts Mutual Life Insurance Co., which concerned an insured's false stat......
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