National Life & Acc. Ins. Co. v. Blagg, 410
| Decision Date | 15 August 1968 |
| Docket Number | No. 410,410 |
| Citation | 431 S.W.2d 396 |
| Parties | The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Mrs. Alvin BLAGG, Appellee. . Corpus Christi |
| Court | Texas Court of Appeals |
Guittard, Henderson, Jones & Lewis, O. F. Jones, Victoria, for appellant.
Cullen, Mallette, Maddin, Edwards & Williams, Donald Edwards, Harry F. Maddin, Victoria, for appellee.
This appeal is from a judgment in the amount of $10,000.00 rendered after jury trial in favor of Mrs. Alvin Blagg, appellee here and plaintiff below, against The National Life and Accident Insurance Company, appellant here and defendant below, hereafter sometimes referred to as 'National'.
Mrs. Blagg sued National to recover $10,000.00 based upon a life insurance conditional receipt, dated July 6, 1965, issued by National to Mr. Alvin Blagg, then the husband of Mrs. Blagg, which reads as follows:
THIS CONDITIONAL RECEIPT IS NOT VALID IF ALTERED, IF SERIAL NUMBER, AMOUNT OR DATE DIFFER FROM THOSE IN APPLICATION, OR IF ANY CHECK OR DRAFT TENDERED AS DEPOSIT IS NOT HONORED ON PRESENTATION FOR PAYMENT.
RECEIVED OF ALVIN BLASS a deposit of $8.50 on account of first premium for proposed insurance of $10,000.00 on life of same for which application numbered as below is this day made to The National Life and Accident Insurance Company. Said deposit is received by the Company subject to the following conditions:
(1) If said deposit is at least equal to premium for one full month (such premium being computed on pro rata basis is premium made other than monthly), unsurance under terms of policy applied for shall take effect as of date of said deposit or date of medical examination (if required), whichever shall be the later, provided that on that date Proposed Insured, in the opinion of the Company's authorized officers in Nashville, Tennessee, was insurable and acceptable under the Company's rules and practices for the Amount, Premium and Rating Class applied for.
(2) Under no circumstances or conditions other than those set forth in (1) above shall receipt of said deposit be deemed to place any insurance in force at any time.
(3) If said deposit is leas than first premium under policy, any insurance placed in force hereunder shall terminate 31 days after end of a period which commences with effective date of insurance and bears same proportion to a year that said deposit bears to total premium payable under policy in a year, provided, however, that if, prior to such termination the remainder of said first premium shall be paid, such insurance shall not so terminate but shall be deemed to have been placed in force for same period as though initial deposit had been for entire amount of said first premium.
(4) If Company declines to issue any insurance, or if policy is issued other than as applied for and Applicant declines to accept it, deposit received hereunder will be returned.
Date______7-6-65__________19__ B.R.Hanes________________Agent
Form 2001 Rev. 6-54 No. 191347 District___Victoria____________ Alvin Blagg died on August 14, 1965, at which time National had not issued a policy of life insurance to him . National denied liability to Mrs. Blagg, the beneficiary, and this suit resulted.
The trial court submitted five special issues to the jury. Only issues 1 and 3 were answered, issues, 2, 4 and 5 being conditionally submitted.
The issues and the jury answers are as follows:
'SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that the Defendant insurance company's authority officers ever formed an opinion that Alvin Blagg was insurable and acceptable under the company's rules and practices for the amount, premium and rating class of insurance applied for upon the date of his physical examination?
Answer: 'They did form an opinion' or 'They did not form an opinion'.
We, the Jury, answer: They did form an opinion
If you have answered the foregoing Special Issue No. 1 'They did not form an opinion', then and in that event only, answer the following:
We regret that it is necessary to decline this application. Please notify the agent and the applicant promptly of this action.
Note reason for declination checked below:
__ I-- Build
__ II-- Physical
__ III-- Occupation
X V-- Application Retired. See Special instrucitons above.
Do you find from a preponderance of the evidence that a reasonably prudent and careful authorized officer of Defendant insurance company, acting in good faith, would, on the evidence available, form an opinion that Alvin Blagg was on the date of the completion of his medical examination insurable and acceptable under Defendant insurance company's rules and practices for the amount, premium and rating class of insurance applied for?
Answer: 'Yes' or 'No'.
We, the Jury, answer: _ _
If you have answered the foregoing Special Issue No. 1 'They did form an opinion', then and in that event only, answer the following:
SPECIAL ISSUE NO. 3
What do you find from a preponderance of the evidence the opinion of the company's authorized officers was concerning Alvin Blagg's insurability and acceptability under the company's rules and practices for the amount, premium and rating class of insurance applied for upon the date of his physical examination?
Answer: 'The opinion was that he was insurable and acceptable' or 'The opinion was that he was not insurable and acceptable'.
We, the Jury, answer: 'The opinion was that he was insurable and acceptable'
If you have answered the foregoing Special Issue No. 3, 'The opinion was that he was not insurable and acceptable', then and in that event only, answer the following:
SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that the formation of an opinion that he was not insurable and acceptable, if you have so found, was not made in good faith?
Answer: 'It was not made in good faith' or 'It was made in good faith'.
We, the Jury, answer: _ _
If you have answered the foregoing Special Issue No. 4 'It was not made in good faith', then and in that event only, answer the following:
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that a reasonably prudent and careful authorized officer of the Defendant insurance company, acting in good faith, would, on the evidence available, form an opinion that Alvin Blagg was on the date of the completion of his medical examination insurable and acceptable under Defendant insurance company's rules and practices for the amount, premium and rating class of insurance applied for?
Answer: 'Yes' or 'No'.
We, the Jury, answer: _ _'
During its deliberations the jury submitted the following question to the judge: '* * * Please give us a clear explanation of Special Issue #1.' The court answered as follows:
'In response to your request for instructions, you are being asked 'Do you find drom a preponderance of the evidence that the defendant insurance company's authorized officers ever formed an opinion regarding Alvin Blagg's insurability and acceptability upon the date of his physical examination?"
Counsel for National agreed to the additional instruction of the court but preserved the objections previously made to submission of original special issue No. 1.
We have concluded that appellant's points one and three which assert in substance that the evidence is legally and factually insufficient to support the jury answer to special issue 3 are well taken and require reversal of the judgment. Those points will first be discussed.
The testimony of Kenneth F. Haas, an underwriting manager for National in Nashville, Tennessee, reflects the following: Mr. Blagg's application, dated July 6, 1965, was first referred to the district office at Victoria, Texas where it was received on July 9, 1965. It was checked against the records there to see if there had been a previous transaction with Mr. Blagg, and a commercial inspection report was ordered. At appellant's request Blagg was examined by Dr. Don L. Wendt in Victoria, Texas on July 16, 1965. The doctor's report showed that Mr. Blagg's blood pressure and other indications of health were normal when Blagg was examined, and rated Blagg as a first class risk. The report of this physical examination together with the application was then forwarded to the office of National in Nashville, Tennessee on or about July 19, 1965 . After a record check in the office the matter was referred to Haas on or about July 21, 1965. On that date a letter was written, over the signature of the Medical Director, to Dr. Wendt at Victoria, Texas. It read in part as follows:
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National Life & Acc. Ins. Co. v. Blagg
...was entered on the jury's verdict favorable to Mrs. Blagg. The Court of Civil Appeals reversed and remanded the cause for a new trial. 431 S.W.2d 396. The insurance company is the petitioner here, and the only point before us concerns the Court of Civil Appeals' alleged error in remanding t......