Dorsey Life Ass'n v. Davis, 2786.
| Decision Date | 30 January 1936 |
| Docket Number | No. 2786.,2786. |
| Parties | DORSEY LIFE ASS'N v. DAVIS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Nacogdoches County; C. E. Brazil, Judge.
Suit by J. H. Davis, administrator of the estate of Bud Collins, deceased, against the Dorsey Life Association. From a judgment for plaintiff, defendant appeals.
Affirmed.
John Q. Adams and W. P. Glass, both of Harlingen, for appellant.
Adams & McAlister, of Nacogdoches, for appellee.
By its policy dated November 22, 1932, which was issued in lieu of a policy issued on January 2, 1932, the appellant, a mutual aid association, insured the life of Bud Collins in the sum of $1,000. Collins died October 22, 1933, while the policy, by its terms, was in full force. Proof of death was duly submitted and appellant refused payment. This suit was instituted in the district court of Nocogdoches county by J. H. Davis, administrator of Collins' estate, seeking recovery on the policy. Among other defenses pleaded, the defendant sought to defeat recovery on the ground that the deceased, in his application for the insurance, had made certain false representations which, under the policy and the by-laws of the company, which were specifically pleaded, rendered the policy void.
Appellant's by-laws, which were introduced in evidence, required that the applicant should be in good health at the time his application was made. Collins' application was dated December 30, 1931, and, in response to the questions therein asked and answered, he represented that he was in good health. Appellant, by way of defense against the policy, alleged that such representation was false and that Collins was not in good health at such time. The case was tried to the court without a jury, and, upon conclusion of the evidence, judgment was rendered against the appellant and in favor of the appellee for the face amount of the policy, $1,000, plus $18 interest, and directing a levy of the assessment provided for by the by-laws of the association, with the proviso that, if the amount of the judgment was not collected by the assessment, then that the recovery should be limited to the amount realized by such assessment.
The only material question before us is appellant's contention that the undisputed evidence, as a matter of law, established its special defense that Collins was not in good health at the time he made application. The trial court filed no findings of fact or conclusions of law, and none were requested.
The testimony of Dr. W. T. Castleberry, the family physician of the deceased, was to the effect that some time during the Christmas holidays of 1931 he was called to see the deceased, Collins; that Collins was in bed suffering with high fever and was a very sick man. Dr. Castleberry diagnosed his trouble as influenza. The exact duration of the illness is not shown, but it appears that Dr. Castleberry treated him for some time and until he recovered. Dr. Stephen Tucker...
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