Great American Life Ins. Co. v. Dearing

• Citation: 193 S.W.2d 250
• Decision Date: 14 February 1946
• Docket Number: No. 11766.,11766.
• Parties: GREAT AMERICAN LIFE INS. CO. v. DEARING.
• Court: Court of Appeals of Texas

193 S.W.2d 250

GREAT AMERICAN LIFE INS. CO. v. DEARING.

No. 11766.

Court of Civil Appeals of Texas. Galveston.

February 14, 1946.

Rehearing Denied March 7, 1946.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Anna Margurit Dearing against the Great American Life Insurance Company to recover as for double indemnity on a life policy. Judgment for plaintiff and defendant appeals.

Judgment reformed and as reformed affirmed.

Blades, Chiles, Moore, Kennerly & Knight, of Houston, for appellant.

Devereaux Henderson, of Houston, for appellee.

GRAVES, Justice.

This suit was brought by appellee to recover as for double indemnity upon a policy of life insurance issued and delivered by appellant on appellee's husband's life, he having died—by the mutual concession of the parties—as a result of gunshot wounds.

The court submitted what it deemed to be the controlling issues of fact raised by the pleadings and evidence in the case to a jury upon these two issues of fact, both of which were answered in appellee's favor, as therein indicated.

"No. 1. Do you find from a preponderance of the evidence that on the date of the delivery of the policy of insurance made the basis of this suit, the insured, Guy Taylor Dearing, was not in sound health?

"To which the jury answered `No'.

* * * * * *

"No. 3. Do you find that the insured, Guy Taylor Dearing, committed suicide?

"To which the jury answered `No'."

Judgment was thereupon entered below in favor of the appellee against the appellant, the gist of which was this: "The Court, having considered the verdict of the jury, the stipulations of the parties, and the evidence in the case, and being fully advised in the premises, is of the opinion and so finds that the Plaintiff is entitled to recover, and that judgment should be entered in favor of the Plaintiff and against said Defendants in the sum of one thousand eight hundred thirty ($1,830.00) dollars, as for double-indemnity under the policy of insurance sued upon, together with the sum of $219.60, the penalty thereon of twelve per cent thereof, pursuant to the provisions of Article 4636, of the Revised Civil Statutes of the State of Texas; plus interest amounting to $96.60 on said sum of $1,830.00, calculated at the rate of six per cent annum from December 1, 1944, to October 15, 1945; plus the additional sum of $350.00 as for attorney's fees, pursuant to the Statutes and the stipulations of the parties."

In this court appellant's controlling points of error are to the effect—despite the quoted findings of court and jury taken together to the contrary—that (1) "The undisputed evidence conclusively shows that the insured, Guy Taylor Dearing, was not in sound health upon the date the policy of insurance sued upon was issued and delivered"; (2) "The undisputed evidence conclusively shows that the deceased, Guy Taylor Dearing, committed suicide, for which there can be no recovery by virtue of Section 17 of the policy of insurance sued upon."

As part of its assigned contention, both below and in this court, that the undisputed evidence conclusively showed the two results it so grounds its appeal upon, appellant further detailed its position by the averment that the criticised judgment and verdict were so against the overwhelming weight and preponderance of the evidence in each particular as to be wholly wrong.

In support of its first contention appellant cites and relies upon these two Texas court decisions, of which it says: "Only two cases have been found arising in our state and specifically dealing with a fact situation involving medical testimony relative to diagnosis and treatment on the date of the issuance and delivery of a policy of insurance. They are Metropolitan Life Insurance Company v. Betz, Galveston, 1907, 44 Tex.Civ.App. 557, 99 S.W. 1140, 1141, and Scharlach v. Pacific Mutual Life Insurance Company, 5 Cir., 1926, 16 F.2d 245, 248."

The two cited decisions were upon analogous facts and made like holdings to the effect that the plaintiffs therein were conclusively shown not to have been in good health at the time the policies were delivered, hence had not been entitled to recover under the same provision requiring good health as a condition precedent to the taking effect of the insurance that was contained in the policy here involved; of the earlier and main one of the two, which, as stated, were of the same class, the Betz case, appellant's brief thus declares: "The parallel between the Betz case and the case at bar is so striking that little amplication need be made. The fact that the insured in the Betz case died as a consequence of the disease rendering him in unsound health is of no material importance in our jurisprudence."

With much respect, this court must differ with appellant upon both its points of error, and hold that, in its material reaches, this cause was one for the jury as so submitted to it by the court, and that the challenged verdicts of both court and jury thereon were neither without any evidence to support them, nor so against the overwhelming preponderance of the evidence as to be clearly wrong; but that, to the contrary, the pleadings and evidence properly raised as issues of fact the two questions so submitted, and made of them inquiries it was the jury's exclusive province to resolve, hence this court is without authority to set them aside.

It would serve no needful purpose to at much length discuss appellant's quoted construction of the cited Betz opinion by this court, for this among other considerations:

The Betz case is clearly distinguishable on its facts from the one at bar, in that: (1) The policy therein sued upon was a medical policy—that is, the company's doctor had examined the insured on the date it was issued, as distinguished from the situation here, where no such medical examination was made; (2) the insured was shown to have subsequently died from the disease he was found by the examining doctor to have had at the time the policy was issued; (3) the disease Betz was so shown to have died of was Bright's disease, the early stages of which do not affect the healthful appearance of its victims, and, upon which fact alone, this court held that the testimony of plaintiff's witnesses there as to his appearance did not raise an issue as to whether or not he was then suffering from that disease.

The Scharlach case was in effect of the same kind precisely, hence it need not be further specifically discussed.

The case at bar, as indicated, was diametrically different as to the three features permeating appellant's two cited authorities; that is, in this instance there was no medical examination at all had prior to the issuance and delivery of this policy; by mutual insistence of these parties, this deceased did not die from the claimed Pellagra appellant urges he was shown to have been afflicted with at the time the policy was issued, but from gunshot wounds; and, lastly, the alleged Pellagra affection, unlike the Bright's disease of Betz, was undisputedly shown to have been one in which the incipient stages even were always conspicuously shown in the victim's condition and appearance, to such an extent that everybody —that is, the ordinary observer—who knew him could and would have detected from his appearance that he was diseased; wherefore, upon this feature, such being the plain purport of the testimony before the trial court, it is held that the judgment and verdict as applicable to such a state of facts are supported by...