National Life & Accident Co. v. Muckelroy

Decision Date03 June 1931
Docket NumberNo. 7611.,7611.
Citation40 S.W.2d 1115
PartiesNATIONAL LIFE & ACCIDENT CO. v. MUCKELROY et al.
CourtTexas Court of Appeals

King, Battaile & Dutton, of Houston, for plaintiff in error.

King, Wood & Morrow and H. E. Cox, all of Houston, for defendants in error.

BAUGH, J.

Suit was filed by plaintiff in error, after the death of the insured, to cancel a $2000 insurance policy issued by it on the life of R. T. Muckelroy on February 25, 1927, on the grounds that misstatements made by him in his application constituted a fraud upon it; and that he was not in good health at the time said policy was delivered to him, as required by its terms to make the policy binding on the company. The defendants in error, beneficiaries under said policy, filed a cross-action for the amount of said policy, penalties, and attorney's fees. The case was tried to a jury upon special issues, and judgment on their findings rendered in favor of the beneficiaries.

Only two assignments are here presented: (1) That the insurance company was entitled, under the evidence, to an instructed verdict in its favor; and (2) that the jury finding that the insured was in good health at the time the policy was delivered is contrary to the overwhelming preponderance of the evidence.

The issue of fraud and misstatement of facts in deceased's application for insurance dated January 30, 1927, is predicated upon the following: Applicant stated in response to inquiry: "Have you ever consulted a physician for any ailment or disease not included in above" (specific inquiries in application) that he had an attack of malaria in 1900 of 30 days duration, but had been cured. The insurance company showed that the deceased had been examined by Dr. Buie at Marlin in August, 1921, who stated that he had no independent recollection of Muckelroy, but testified only from his records, which showed that an X-ray then disclosed apparent gall stones, and that his liver was enlarged and hard below the coastal border; that he made no diagnosis of Muckelroy's case at the time, but that from his record he would diagnose said case as obstructive jaundice. The treatment recommended was diet, mineral baths, and some form of electric treatment. There was also evidence to show that prior to that time Muckelroy had taken too large a dose of calomel, was jaundiced, and in a run down condition. That his wife had undergone an operation and was in poor health, and that both of them had gone to Marlin to take the mineral baths there; that both were examined by physicians at the time as preliminary and incidental to taking the baths. The evidence is clear that after taking the baths, which appear to have been the only treatment received at Marlin in 1921, Muckelroy was restored to normal health and remained so up to within a short time prior to his death. In addition, the medical director of the insurance company at its home office, after receiving said application wrote to Dr. Jones, the local medical examiner of said applicant, inquiring further about any history of a gall bladder disease at any time, and was advised by Dr. Jones prior to the issuance of said policy that about seven years prior thereto Muckelroy had become jaundiced, had several boils and considerable bile in his urine, and had been treated during said attack by Dr. Buie of Marlin, Tex., but had entirely recovered.

Doubtless the applicant did not consider his trip to Marlin along with his wife to take the mineral baths there as treatment by a physician, and omitted to so state in his application. In any event, the duly authorized agent of said company to pass upon such matters, its chief medical director, was informed in writing prior to the issuance of said policy of the facts concerning the matter, and issued the policy with these facts in their possession. The insurance company is therefore in no position to now complain, nor can it be said that it was misled or induced by fraud to issue said policy.

The policy was delivered to the insured on February 25, 1927. The first attack of illness thereafter shown was on July 2, 1927. On August 24th, the deceased underwent an operation...

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21 cases
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