Coxson v. Atlanta Life Ins. Co.

Decision Date19 April 1944
Docket NumberNo. A-74.,A-74.
Citation179 S.W.2d 943
CourtTexas Supreme Court

This is a suit by the petitioner, Ira Coxson, in behalf of his wife, Ida Bell Coxson, against the respondent, Atlanta Life Insurance Company, upon a life insurance policy issued by respondent upon the life of Rustine Frederick, deceased, in which petitioner's wife, a sister of deceased, was named beneficiary. Petitioner sued for $156, the face value of the policy, and for the statutory 12% penalty and attorney's fees in the sum of $150. The policy provided that the same should not be effective if the insured was not in sound health at the time it was issued. The defense of the respondent was that the deceased was not in sound health at that time. In the trial court the jury resolved this issue against respondent and that court rendered judgment for petitioner for the face amount of the policy plus the 12% penalty. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for respondent. 177 S.W.2d 114.

The Court of Civil Appeals held that the trial court erred in not instructing a verdict for respondent and in entering judgment for petitioner. Such holding was upon the ground that the evidence as a whole, and particularly certain statements in the proof of death submitted to respondent by the claimant, showed conclusively that the insured had tuberculosis and was not in sound health when the policy was issued.

This court granted petitioner's application for writ of error upon the assignment that the Court of Civil Appeals erred in holding that the evidence raised no jury question as to the sound health of the insured. As a basis for jurisdiction of the Supreme Court petitioner asserts that the holding of the Court of Civil Appeals is in conflict with the holding of this court in Vann v. National Life & Accident Ins. Co., 24 S.W.2d 347 and a former holding of the same Court of Civil Appeals in Taylor v. Atlanta Life Ins. Co., 130 S.W.2d 889. We think the petitioner is correct as to the conflicts in both instances.

The policy was issued on March 3, 1941, and the deceased died of pulmonary tuberculosis on July 25, 1942. During the first part of May 1941, about two months after the issuance of the policy, the deceased, who then lived in Dallas, was taken to Parkland Hospital in that city as an emergency patient. He remained there about two weeks when, on May 22, 1941, he was transferred to Woodlawn Hospital, a tubercular institution in the same city, where he remained as a patient until his death fourteen months later. The application for admission to Woodlawn Tubercular Hospital, signed by the deceased, stated that deceased was a 28-year-old negro, that he owned no property, was unable to pay for hospital care, and had been "Sick for past 2½ years."

The proof of death, which the Court of Civil Appeals held precluded a recovery, was upon the form of the insurance company and consisted of a sworn statement by the beneficiary and an unsworn statement from the attending physician, Dr. Roy Goggans, of Dallas. The statement of claimant was dated August 25, 1942, and that of the physician September 11, 1942. From the sworn statement of the claimant the following questions and answers are deemed material: "11. What was the cause of death? Doctor says tuberculosis. 12. When was health of deceased first affected? About June 1, 1941. 13. How long was deceased confined to house by last illness? About fourteen months. 14. State name and address of each physician who has attended deceased during the last two years. Roy Goggans, Dallas, Texas."

On the reverse side of the above certificate was the statement of the attending physician. At the conclusion of this statement there appeared the usual affidavit form for a notary public, which was left blank and unexecuted, and the appendage appeared thereunder that "This affidavit must be executed by the attending physician." The portions of the unsworn statement of the physician which we deem material are as follows: "3. Apparent age at death. 29 years. 8. Date of death. 7-25-1942. 9. Date of your first visit or prescription in last illness. 5-22-1941. 10. Date of your last visit. 7-25-1942. 11. Had you previously attended deceased? No. 13. State the disease causing death (Avoid indefinite terms). Pulmonary tuberculosis. 14. State the duration of illness. (a) From personal knowledge 14 months. (b) From history of the case 3½ years. 15. Did deceased have consumption? Yes. Roy Goggans, M. D."

Dr. Goggans testified orally that he examined deceased at the time he was admitted to the Woodlawn Hospital on May 22, 1941, and that he was then suffering from pulmonary tuberculosis of both lungs in an advanced stage. This date was more than two months...

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