Morris Ass'n of Brownwood, Tex v. Tatum
Decision Date | 09 May 1941 |
Docket Number | No. 2140.,2140. |
Citation | 152 S.W.2d 871 |
Parties | MORRIS ASS'N OF BROWNWOOD, TEX., v. TATUM. |
Court | Texas Court of Appeals |
Appeal from Comanche County Court; R. S. McCharen, Judge.
Suit by Mrs. W. L. Tatum against the Morris Association of Brownwood, Tex., to recover on life policy. From a judgment for plaintiff, defendant appeals.
Reversed and rendered.
David J. Morris, of Brownwood, for appellant.
Y. W. Holmes, of Comanche, for appellee.
Mrs. W. L. Tatum instituted this suit against The Morris Association of Brownwood, Texas, to recover on an insurance policy upon the life of her husband. The defendant entered a general denial and specially denied that the deceased was in good health at the date of application for and issuance of the policy. A trial was had before the court and jury, and, upon the answers of the latter to many special issues, the trial court entered judgment in favor of the plaintiff. The defendant appeals, predicating error on the ruling of the trial court in refusing it a peremptory instruction.
The defendant is a so-called local mutual aid association organized under Art. 4875a —1 et seq., Vernon's Annotated Civil Statutes. It insures its members upon written applications only by some member of a family or group, without medical examination, and without seeing those included in the application and in reliance solely on the answers given in the application, etc.
Here, the Association defends on the ground that Mrs. Tatum made false answers in the application for insurance when she stated (1) that her husband was in good health at the time of the application and issuance of insurance certificate, and (2) that he had not been treated for any illness in the past two years by a doctor. The defendant insists that during such time doctors had given Tatum several X-ray treatments, etc., for cancer, and that he was not in good health and free from disease at time of application and issuance of insurance certificate.
The defendant further insists that by the application and policy Mrs. Tatum warranted the answers in the application which she filed and that by the same she made good health and freedom from disease at such time conditions precedent to any liability by the defendant upon the policy.
The application for and certificate of insurance were both dated August 27, 1938. Mrs. Tatum's application, made part of the defendant's answer, contained the following:
Based upon the statements in the above application the policy of insurance was issued. That policy contains these additional provisions:
Mrs. Tatum, who resided in Comanche, Texas, sought out the Insurance Association at Brownwood and made the above application. Her husband was not present at the time, did not know the insurance was being applied for, and, according to her testimony, he was opposed to insurance. She had accompanied her husband to doctors for advice and treatments.
The jury found (1) that W. L. Tatum had cancer at the time Mrs. Tatum applied for the insurance, August 27, 1938. (2) That he had been attended by a physician "within the two years prior to the application" then made by Mrs. Tatum. (3) That Mrs. Tatum did not reveal to the agent of the Association the name of the "attending physician." (4) That she did not tell the Association's agent he (Tatum) had to be treated for cancer prior to August 27. (5) That Tatum died within two years from the date of the application and certificate.
Dr. Jewel Daugherty testified that he "treated him (Tatum) between January 1938 and June 1938." Concerning the physical condition of the deceased Tatum, this doctor testified:
Dr. C. W. Drake, a specialist in the treatment of cancer by x-ray, testified:
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