Commercial Casualty Ins. Co. v. Hamrick

• Decision Date: 15 April 1933
• Docket Number: No. 11206.,11206.
• Parties: COMMERCIAL CASUALTY INS. CO. v. HAMRICK.
• Court: Texas Court of Appeals

60 S.W.2d 247

COMMERCIAL CASUALTY INS. CO. v. HAMRICK.

No. 11206.

Court of Civil Appeals of Texas. Dallas.

April 15, 1933.

Rehearing Denied May 20, 1933.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

Action by Lester J. Hamrick against the Commercial Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jno. D. Reese, of McKinney, and Church, Read & Bane, of Dallas, for appellant.

L. J. Truett, of McKinney, for appellee.

LOONEY, Justice.

Lester J. Hamrick sued the Commercial Casualty Insurance Company upon a health and accident policy, claiming indemnity for an injury received through external, violent, and accidental means, necessitating the amputation of his left foot, and resulting in loss of time by reason of being totally and continuously disabled from performing duties pertaining to any business or occupation for a period of six months, praying judgment for the amount due under the policy with 12 per cent. damages, reasonable attorneys' fee, and interest.

Defendant's answer contains a plea denying that the policy ever became effective, because plaintiff was not in good health and free from injuries when the same was delivered, as required by a provision of the policy; also denied liability because of alleged false representations made by plaintiff in the application for insurance material to the risk and relied upon by defendant in issuing the policy; also alleged that plaintiff's suffering, loss of time, and the amputation of his left leg, resulted primarily and exclusively, or were contributed to, by a previously existing unsound and diseased condition of his leg and foot, and did not result directly, exclusive of all other causes, from bodily injury sustained during the life of the policy, through external, violent, and accidental means.

In a supplemental petition, plaintiff specially denied that he made false representations, alleged that he correctly informed defendant's agent, a Mr. Lankford, as to his existing physical condition, and that, if defendant's said representative failed to correctly write plaintiff's answers in the application, the failure was due to the fault of said representative, wherefore, plaintiff claimed that defendant waived the provision of the policy relating to plaintiff's physical condition at the time of the application, and delivery of the policy; also alleged that the existing condition of his leg did not cause pain or suffering or give trouble, other than the inconvenience of being a cripple, and had not for at least twenty-five years prior to the injury complained of; that his physical condition was sound when the policy was issued, and, but for the injury complained of, amputation of his leg would not have been necessary.

The material facts are these: When plaintiff was about nine years of age, about twenty-five years before the issuance of the policy sued upon, he was injured by sticking a small weed in his left knee, blood poison set up in the wound, the fluid nature furnished for his knee joint escaped, resulting in a stiff knee, and for about fifteen or eighteen years had used a peg leg fastened to his knee or leg with a leather strap; prior to the transactions involved here, plaintiff was engaged in the barber business, and, for about five years prior to taking out the insurance, his leg, between the knee and foot, would swell considerably in the daytime, and subside at night when he was not standing or walking, the swelling being due to poor circulation caused by the leather strap binding his knee to the peg; however, this condition did not produce pain.

On November 12, 1929, plaintiff was solicited by W. W. Lankford, defendant's representative, to take out the policy in suit; at that time, plaintiff was wearing the peg, his leg was shown to the solicitor, who examined same, was given a history of the injured limb; plaintiff also informed Lankford that he had never been able to get insurance because of the condition of his leg; Lankford stating that he would examine the leg and write about it in the application, and, if accepted, plaintiff's policy would be as good as anybody's; thereupon, Lankford propounded to plaintiff questions contained in the application, and, when answered, pretended to write plaintiff's answers; the application, when finished, was signed by plaintiff on the supposition that Lankford had written in his answers correctly. On the day the application was taken, Lankford countersigned the policy, also a special policy agreement indorsed on the policy over the words "authorized representative," the signatures of the president and secretary to the policy being in scrip. From these circumstances, it is obvious that Lankford had blank policies, was authorized to fill, countersign, and deliver same, in fact, did deliver the policy to plaintiff about a week after the application was taken.

On January 15, 1930, while driving an automobile, plaintiff received an injury to his left leg, between the knee and ankle, caused by his car skidding and running into a ditch, throwing his leg against the door, and, after leaving the car, slipped and fell, his testimony being that he is uncertain whether his leg was injured when thrown against the door of the car, or when he slipped and fell upon the ground, at the time, covered with ice and slippery. The injury consisted of a deep cut on his leg about two inches long, also in its being bruised. Plaintiff was immediately treated by Dr. Wolford, of McKinney, which continued for about a week; in the meantime, his leg grew worse, the wound seemed to heal, formed a scab, which would come off leaving the wound raw, and, after about a week, was advised by his physician to consult Dr. Carroll, of Dallas, who advised amputation. Plaintiff returned to McKinney, and later, was also advised by Dr. Wolford to have his leg amputated. Prior to the recent injury, Dr. Wolford had never advised amputation, plaintiff had never had an idea of having his leg amputated, but did consider having it straightened. Plaintiff testified further that, from the time of the recent injury until the amputation he suffered all the time, and for that reason, only, he had his leg amputated; that after recovering from the prior injury, he was not troubled with the crippled leg, suffered no pain, lost no time from his work on account of its condition, was in good health at the time he signed the application for the policy, and at the time the same was delivered, and had been in that condition for twenty-five years; that after his leg was injured, in January, 1930, it was about six months before he was able to do any work at all, and, during that period, was under the care of Dr. Wolford.

The case was submitted to a jury on special issues, and, as answers to issues 1, 3, 7, and 8 are not objected to, they will be set off to themselves as follows: That on or about January 15, 1930, while driving in an automobile, plaintiff sustained a bodily injury solely through external, violent, and accidental means; that the injury resulted directly, and exclusive of all other causes, in an immediate, continuous, and total disability that prevented plaintiff from performing any and every duty pertaining to his business or occupation (in response to another issue the jury found that the disability continued for 5½ months); that plaintiff informed Lankford, defendant's agent, that his left leg was swollen at the...