Manhattan Life Ins. Co. v. Harkrider
Decision Date | 03 November 1965 |
Docket Number | No. 11322,11322 |
Citation | 396 S.W.2d 207 |
Parties | The MANHATTAN LIFE INSURANCE COMPANY, Appellant, v. Elizabeth B. HARKRIDER, Appellee. |
Court | Texas Court of Appeals |
Coleman Gay, Austin, for appellant.
Gaynor Kendall, austin, for appellee.
Elizabeth B. Harkrider, plaintiff-appellee, brought this suit against Manhattan Life Insurance Company, defendant-appellant, 1 to collect the $10,000 face amount of a policy of life insurance which defendant sold to her late husband, Rupert R. Harkrider (hereinafter called the insured) on his life, with plaintiff as beneficiary; and, the defendant having refused to pay the claim for more than thirty days after demand and proof of loss, to recover also interest on the amount due, together with the statutory penalty, attorneys' fees and costs of suit.
The insurance company sought to avoid the policy on the ground that the insured had knowingly made material misrepresentations in the application for insurance, and that such misrepresentations were 'made willfully and with the fraudulent intention of deceiving defendant and inducing it to issue the policy * * *' Specifically, it was contended by the defendant that the insured had made false and fraudulent answers to question number 6 and to question 7(k) in the application for insurance. These questions and the answers of the insured thereto, were as follows:
'6. Have you had any health examinations or check-ups in the past five years? (If so, state symptoms which prompted the examination, give physician's diagnosis and recommendations, also name and address.)
7. Within the last 10 years, have you had or been told you had or been treated for: * * *
(f) High blood pressure? When? What drugs and dosage were used? * * *
(k) Any other disorer, injury or impairment?
No'
In the column adjacent to question 7(f), the insured gave 1961 as the date of the high blood pressure, and 'serpasil .25 mgm t.e.d.' as the medication prescribed.
Trial was to a jury on special issues, in response to which the jury made the following findings regarding question 6 in the insurance application:
(a) That 'at the time he signed his application for insurance Rupert R. Harkrider knew that his answer to Question No. 6 was false;'
(b) That Rupert R. Harkrider did not make 'his answer to question 6 * * * with the intent to deceive and mislead the defendant into issuing said policy of insurance.'
(c) That Rupert R. Harkrider did not answer Question No. 6 'for the purpose of wrongfully inducing The Manhattan Life Insurance Company to issue the policy'; (the Court at defendant's request having defined the term 'wrongfully inducing' as meaning 'the concealment or misstatement of facts as an inducement to issue a policy of insurance, which policy would not have been issued if such facts had not been concealed or misstated.' and
(d) That the answer to Question No. 6 was not 'material to the risk.'
Regarding insured's answer to Question 7(k) of the application, the jury found:
(a) That at the time he signed the application, Rupert R. Harkrider did not know that his answer to Question 7(k) was false;
(b) That he did not make his answer to the question 'with the intent to deceive and mislead the defendant into issuing said policy of insurance;'
(c) That he did not answer Question 7(k) 'for the purpose of wrongfully inducing The Manhattan Life Insurance Company to issue the policy;' and
(d) That the answer to question No. 7(k) was not 'material to the risk.'
The jury also found that the defendant had relied on insured's answers.
On the basis of the jury's verdict, the District Court entered judgment for plaintiff, overruling defendant's motion for judgment non obstante. The defendant has appealed to this Court, and has filed a brief containing twenty points of error, of which seven (Appellant's Points 2-8) 2 attack the jury's findings on the ground that there is 'no evidence' to support the answers to Special Issues 2, 3, 5, 11, 12, 13 and in consequence that the Court erred in overruling defendant's motion for judgment non obstante (Point I); 3 and seven more points of error assert that the answers of the jury to those same issues are so greatly against the preponderance of the evidence as to be clearly wrong (appellant's Points 14-20). 4
Finally, defendant-appellant argues that the trial court should not have submitted Special Issues 2, 3, 12 and 13 in the form submitted but that in lieu of those issues the Court should have given defendant's Requested Special Issues 1 and 2 (Appellant's Points of Error 9-13). 5
We overrule these points and affirm the judgment of the trial court.
The insured, Rupert R. Harkrider, was 53 years of age in the spring of 1962. He was a graduate of the University of Texas Law School and had been a lawyer in Abilene and Beaumont before moving to Austin nine years previously. He had not practiced law in Austin, but was in the cattle business, had some stocks, owned rent property, and was taking care of his own properties and business.
After the Harkriders came to Austin, they became close friends of Dr. A. H. Neighbors, Jr., and his family, who lived in the same block; they visited socially; their children stayed at one another's houses; and this relationship had existed for upwards of seven years. Dr. Neighbors became the family physician of the Harkriders, and had seen Mr. Harkrider on three or four occasions professionally. Dr. Neighbors testified that he first saw Harkrider professionally in December of 1960, and at that time.
'He wanted me to check his blood pressure and see how he was doing, and he had some high blood pressure, and I put him on some medicine and told him that I needed to check him again.'
The blood pressure condition was what Dr. Neighbors classed as 'borderline' in the sense of being barely above normal readings, but he prescribed Serpasil for the condition.
Mr. Harkrider was only 5 feet 4-3/4 inches tall, but then weighed 168 pounds. About December 1961, at Dr. Neighbors' suggestion, he went on a diet to lose weight, and continued the diet until May 30, 1962. The doctor had told him if he would lose some weight, it would add ten years to his life.
The blood pressure condition was the only medical problem for which he consulted Dr. Neighbors.
The above was the status in April 1962, with Mr. Harkrider still on the diet and still taking Serpasil for the blood pressure condition when the matter of insurance came into the picture. The evidence reveals that Mr. Harkrider already owned some life insurance and in prior years he had been declined a policy by one company and was offered (but declined) a ratedup policy by another, both on account of high blood pressure. But he did not originate the negotiations which ripened into the policy in suit. Instead, mr. Nolan, agent for Southwestern Life, testified that in April 1962, Southwestern made a special offer to encourage its agents to call on its present policyholders, by proposing to write up to $5,000 additional insurance for any such policyholder, without requiring a medical examination, but simply on a medical history to be obtained from the policyholder by the agent. Mr. Nolan testified he 'had been talking to Mr. Harkrider for several years about some additional insurance, and when this offer came out, I suggested to him that it might be a good thing for him to take advantage of it.' Harkrider waited until the last day the offer was open before he decided to make application to Southwestern for the additional $5,000 policy. Mr. Nolan was sure that Harkrider revealed to Southwestern 'that he had been going to Dr. Neighbors for a history of hypertension' because Nolan received and had in his files copies of the correspondence between Southwestern and Dr. Neighbors where they asked the doctor for Harkrider's medical history. 'The result (of this application) was that due to his history of elevated blood pressure, the Company (Southwestern) preferred to decline the application' and so notified Harkrider and the agent under date of May 25, 1962.
Mr. Nolan testified that upon receipt of notice that Southwestern had declined the policy, he got in touch with Mr. Daniels, the general agent at San Antonio for the defendant Manhattan Life Insurance Company, because it was known as one specializing in substandard risk or extra-premium business; he told Daniels about Harkrider's situation, and asked if Manhattan would consider writing the policy, and at what rate. Mr. Daniels told him to get 'a preliminary application form filled out' along with a permission letter authorizing Manhattan to write Harkrider's doctor. This Nolan did, and mailed the two instruments to Mr. Daniels on May 28, 1962.
Next in chronological sequence is the fact that on May 30, 1962, Mr. Harkrider went to Dr. F. M. Pearce, Jr. and had a physical examination, the denial of which in answer to Question 6 is the basis of the claim by defendant of fraudulent misrepresentation on the part of insured. The testimony of two witnesses, Mrs. Harkrider and Dr. Pearce, related (in part) to this event.
Mrs. Harkrider testified that on May 30, 1962, she and her husband went to Dr. Pearce to get a physical check-up. Asked by defendant whether they regularly got a check-up, she testified 'We tried to, but you don't always do it.' At any event, it had been quite some time since either had been for a general physical, and she wanted them both to go for a physical examination. She could not recall that there was anything about her own physical condition which caused her to decide to go for a check-up. She could not recall that either had not been feeling well. But they had teen-aged children, and with these responsibilities she wanted to be sure they were in good health. The reason Mr. Harkrider went was that she asked him to go. As to whether there was anything about his condition which prompted her to ask him to go, she testified...
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