First Texas Prudential Ins. Co. v. Pipes, 2743.
| Decision Date | 09 December 1932 |
| Docket Number | No. 2743.,2743. |
| Citation | 56 S.W.2d 203 |
| Parties | FIRST TEXAS PRUDENTIAL INS. CO. v. PIPES. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law, El Paso County; J. M. Deaver, Judge.
Action by John Stone Pipes against the First Texas Prudential Insurance Company. Plaintiff recovered judgment in the justice of the peace court and in the county court at law, and defendant appeals.
Affirmed.
Turney, Burges, Culwell & Pollard and J. F. Hulse, all of El Paso, for appellant.
Sydney Smith and John Penn, both of El Paso, for appellee.
Appellee brought this suit in the justice of the peace court against appellant to recover on a life insurance policy issued by appellant to Ludie L. Pipes, in the sum of $132, in which policy appellee, husband of the insured, was named beneficiary. The insured died after the policy was issued and before the filing of the suit. On the trial in the justice of the peace court appellee recovered judgment for the face value of the policy, penalties, interest, attorney's fees; the total recovery being the sum of $173.50. From that judgment appellant duly prosecuted an appeal to the El Paso county court at law, where a trial de novo was had without a jury, resulting in a judgment for appellee, and from which judgment appellant prosecutes an appeal to this court.
Opinion.The application for the insurance policy contained the question: "Has life proposed ever suffered from consumption?" The question was answered: "No." Appellant submits that said answer was false; that the application was signed by appellee and without the knowledge of the insured; that the uncontroverted evidence shows that if the application for the policy had reflected that the assured had had incipient tuberculosis, though arrested, said application would have been rejected, and that under the evidence the court should have found that said representation was material to the risk as well as false, and, so finding, rendered judgment for appellant.
The policy in question shows that it was a policy issued upon what is known as an industrial application, certain questions asked the applicant, and no physical examination made.
Dr. T. C. Liddell testified: Knew Mrs. Ludie L. Pipes in her lifetime; attended her in a professional capacity. In 1929 she had a very mild type of tuberculosis. It can be completely arrested, apparently cured; it is spoken of as an arrested condition. Mrs. Pipes, Mr. and Mrs. Hafley came to witness' office at the time witness examined Mrs. Pipes. Witness was at Mrs. Pipes' home when she died. The cause of her death was coronary thrombosis. "That is not a condition either caused or aggravated by tuberculosis; it is a clogging, stopping up of one of the blood vessels, usually the left, that supplies the heart with blood, the upper part of the heart, the coronary." That is a disease from which some people die instantly and others may be several hours. Mrs. Pipes died within a few hours.
Without quoting the evidence, it is to the effect that Mrs. Pipes had had her tonsils removed prior to 1928, and in 1929 was physically in a run-down condition and at the instance of Mr. and Mrs. Hafley was examined by Dr. Liddell, who took X-ray pictures, and gave her a tonic. Dr. Liddell said that at that time he discovered Mrs. Pipes had a very mild type of arrested tuberculosis; that it would be a comparatively remote possibility of it becoming active again.
Witness Hafley, a brother of Mrs. Pipes, and her husband, John Stone Pipes, testified in substance that they had never known of Mrs. Pipes having tuberculosis.
The evidence is sufficient to sustain the court's findings that the disease of which Mrs. Pipes died was in no manner connected with tuberculosis, or resulted from or grew out of it, and that Mrs. Pipes nor her husband, John Stone Pipes, knew that Mrs. Pipes had, or ever had had, any symptom of tuberculosis. The evidence shows affirmatively that Pipes did not know it. The court found, and we think upon sufficient evidence, that Dr. Liddell did not inform either Mr. or Mrs. Pipes that Mrs. Pipes had an arrested case of tuberculosis.
We cannot conceive how Pipes could conceal or withhold information as to Mrs. Pipes' health he did not have, or that his answer, no, to the question, "has Mrs. Pipes ever suffered from consumption?" be a misrepresentation or false or fraudulent...
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...Kinney, Tex.Civ.App., 282 S.W. 633; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; First Texas Prudential Ins. Co. v. Pipes, Tex.Civ.App., 56 S.W.2d 203; Colorado Life Co. v. Newell et al., Tex.Civ.App., 78 S.W.2d 1049; Southern Life & Health Ins. Co. v. Ramirez, ......
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