Great Am. Reserve Ins. Co. v. Britton, 7622
| Decision Date | 23 March 1965 |
| Docket Number | No. 7622,7622 |
| Citation | 389 S.W.2d 320 |
| Parties | GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. Kathleen E. BRITTON, Appellee. |
| Court | Texas Court of Appeals |
Roger A. Hansen, Brundidge, Fountain, Elliott & Churchill, Dallas, for appellant.
Howard S. Smith, Sulphur Springs, Woodrow Edwards, Mt. Vernon, for appellee.
Plaintiff-appellant, Great American Reserve Insurance Company, sued defendantappellee, Kathleen E. Britton, a widow, the beneficiary in a decreasing term life insurance policy on the life of her husband, Paul E. Britton, seeking to have the policy declared void because of the good health provisions in the policy on the ground that the insured had fraudulently given false answers to the questions in the application for the insurance policy. Appellee answered and filed a counterclaim upon the policy, sought recovery thereunder, and also sought the statutory penalty and attorneys' fees.
Trial was to a jury which answered all the special issues in favor of the appellee on her counterclaim. Judgment was entered for the discounted principal amount of the policy, penalty and attorneys' fees. Appelant has perfected its appeal and brings forward 9 points of error.
On September 5, 1961, about 7:00 P. M., Richard Carpenter, an agent of appellant, went to the home of Paul D. Britton and wife, Kathleen Britton, for the purpose of selling to Paul D. Britton a decreasing term life insurance policy. According to the evidence, and the jury findings, they were all seated at the dining table in the dining room of their home. After a brief discussion, agent Carpenter produced an application for insurance and asked the insured, Paul D. Britton, the questions that were listed on the application. In reply to the first question, Britton told Carpenter that he had had some gas pains in his upper abdomen, in his chest, and pains in his arms. When Carpenter asked Britton about his high or low blood pressure or disease of heart or circulatory system, the insured told Carpenter that he had been having some gas pains in his chest and pains in his arms, and that he had been to see Dr. Lester Hodges in Sulphur Springs, and Dr. John S. Bagwell in Dallas, Texas. Carpenter wrote the name and address of Dr. Hodges on the application. Carpenter also listed the date of birth, the height and weight of Britton, along with his occupation as butcher in Brookshire Food Store in Sulphur Springs, Texas. Carpenter also listed the name of the appellee as the wife of Britton, her age as being 39, and showed her to be in good health; although appellee had had an operation on her leg about two years prior thereto and was still unable to return to work as a nurse.
In answer to the special issues submitted, the jury found that the insured was in good health on the date of the application and on the date of the delivery of the policy. The jury also found that the insured did not answer 'Yes' to the qeustion, 'So far as you know and believe are you in good health and free from impairment?' The evidence shows that Carpenter disregarded the answer that Britton gave, and wrote the answer 'Yes', without the knowledge or consent of Britton. The jury also found that Britton did not answer 'No' to the question in the application, 'So far as you know and believe do you now have or have you had high or low blood pressure of the heart or circulatory system?' The jury further found that Britton did not answer 'No' to the question, As above stated, Britton told Carpenter about the gas pains in his chest and pains in his arms; and gave the names of the two doctors.
After the application was filed out by Carpenter, he made a checkmark on a line at the bottom of the application and handed it to Britton for his signature. Britton signed the application without reading any part of it. After Britton had signed the application, he asked Carpenter: 'What doctor do you want me examined by?' Carpenter told the insured that for a policy of that size the Company did not require an examination by a doctor.
Appellant offered in evidence the written deposition of Dr. Bagwell, of Dallas, Texas. It showed that Dr. Bagwell made an examination of Britton on May 1, 1959. The deposition showed the examination consisted of a complete physical examination with special emphasis to the heart, lungs and abdominal region. A physical examination did not show any definite abnormality. Blood pressure was normal and x-rays of the heart and lungs were considered to be normal. The features in the electrocardiogram were considered to be probably abnormal. Dr. Bagwell did not see Britton but the one time. Dr. Bagwell gave him two prescriptions: one, for nitroglycerin pills, to be dissolved under the tongue for pains in the chest; and, one for penite pills, to be taken one after each meal and one at bedime. Thereis no evidence in the record that Britton ever took any of the pills as prescribed by Dr. Bagwell. According to other evidence in the case, Dr. Bagwell advised Britton and his wife, appellee, that the cardiogram only showed a slight irregularity, and that if Britton had any kind of heart trouble it was angina, which was the best kind of heart trouble to have, becasue it would result in pain at times, which was a warning for him to stop whatever he was doing at the time.
The appellant then offered Dr. Lester Hodges as a witness, and when asked if he knew Britton had heart trouble or a heart condition, he testified as follows:
Dr. Hodges testified that he did not send Britton to see Dr. Bagwell. He further testified that, in his opinion, he was in good health on September 5, 1961, the date of the application, and on September 13, 1961, the date of the delivery of the policy.
The appellee testified that she and Britton were married in 1954. That he was working as a butcher. The work involved lifting heavy quarters of beef that would weigh as much as 150 lbs. . Appellee testified that before the insurance policy was written on her husband she had had an operation and was still not able to return to work. She testified concerning the facts about taking the application for the insurance policy, that she was present at all times and heard everything that was said between Britton and Carpenter. She further testified that her husband and previously been complaining with gas pains in his chest and pains in his arms, that she took him to see Dr. Bagwell because she knew him while she was working as a nurse and had, on occasions, nursed some of his patients. She testified that Dr. Hodges did not send her husband to see Dr. Bagwell. She testified that Dr. Bagwell told them, in effect, that her husband was all right except the cardiogram showed a slight abnormality; that 'if' he had heart trouble it would be the best kind, because it would give the warning for him to know when to slow down. Dr. Bagwell did not tell them that he had a heart condition, and did not advise Britton to return at a future date. Dr. Bagwell gave them two prescriptions. They took them and came back to Sulphur Springs, and Britton went right back to work as a butcher in Brookshire Food Store. Dr. Bagwell did not advise them that Britton should be at all restricted in his working activities.
Britton did not lose any time from his work after September 5, 1961, until May 15, 1962. On that date Dr. Hodges sent him to see Dr. C. D. McMillan in Paris, Texas, becasue he was having difficulty with his stomach; a burning symptom that indicated an ulcer. Britton was entered in St. Joseph Hospital, Parish, Texas, on May 15, where he remained until May 18, 1962.
According to the deposition of Sister Mary of Jesus offered by appellant, the case history of Dr. McMillan revealed the his physical examination failed to show any significant abnormality. He appeared healthy, but quite worried and distressed. Routine blood count and urinalysis were normal at the time of his admission, but a sedimentation rate was 18 millimeters per hour. An electrocardiogram was made that revealed changes consistent with left ventricular hypertrophy. A Masters twostep was done that showed positive changes indicative of coronary sclerosis. X-rays of the upper gastrointestinal tract revealed gastritis and duodenitis with a duodenal ulcer of recent origin. At the time Britton was released from the hospital he was advised as to the findings, except for deemphasis of his coronary condition. He was given a prescription for Donnatal to be taken ac and hs, and Delusil to be taken every two hours between meals while awake. He was given a prescription for long acting Peritrate, to be taken twice daily. It seems that the coronary insufficiency being de-emphasized, that the Doctor and the Hospital actually kept this information away from Britton and his wife, the appellee.
There was no showing by Dr. McMillan, the hospital record, or the nurse as to the date of the onset of the coronary...
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Great Am. Reserve Ins. Co. v. Britton, A--10815
...and judgment was rendered on the jury's verdict awarding Mrs. Britton the relief she sought in full. The Court of Civil Appeals affirmed. 389 S.W.2d 320. We affirm in part and in part reverse and The issue in the courts below concerning answers given by the insured to questions in the appli......