National Life & Accident Ins. Co. v. Taree

• Decision Date: 21 June 1928
• Docket Number: (No. 2160.)
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN. v. TAREE.
• Court: Texas Court of Appeals

Page 291

8 S.W.2d 291

NATIONAL LIFE & ACCIDENT INS. CO. OF NASHVILLE, TENN. v. TAREE.

(No. 2160.)

Court of Civil Appeals of Texas, El Paso.

June 21, 1928.

Rehearing Denied July 5, 1928.

Appeal from El Paso County Court at Law; J. M. Deaver, Judge.

Suit by Will Taree against the National Life & Accident Insurance Company of Nashville, Tenn. Judgment for plaintiff, and defendant appeals. Affirmed.

John M. Worrell and R. A. D. Morton, both of El Paso, for appellant.

Knollenberg & Cameron, of El Paso, for appellee.

HIGGINS, J.

On December 2, 1925, Ozie Walker made written application to appellant for an insurance policy upon her life, naming appellee as beneficiary. On December 14, 1925, the policy was issued. The assured died on March 23, 1927.

This suit was brought by the beneficiary to recover the face of the policy in the sum of $234, and the statutory penalty and attorney's fees. Judgment was rendered as prayed for.

Questions 16 and 21 in the application read:

"(16) Are you in good health?"

"(21) Have you ever had * * * cancer? * * * If yes, give particulars."

16 was answered, "Yes;" 21, "No."

The application provides:

"I hereby apply for insurance for the amount herein named, and I declare that the answers to the above questions are complete and true. * * * I agree that said answers, with this declaration, shall form the basis of a contract of insurance between me and the National Life & Accident Insurance Company, and that the policy which may be granted by the company in pursuance of this application shall be accepted, subject to the conditions and agreements contained in such policy."

The policy issued contains this provision:

"No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health. Should the proposed insured not be alive or not be in sound health on the date hereof, any amount paid to the company as premiums hereon shall be returned."

The incontestability clause reads:

"After this policy shall be in force for two full years from the date hereof, it shall be incontestable except for nonpayment of premiums, fraud, or misstatement of age, subject to the restrictions as to military or naval service as contained herein."

The defendant pleaded the quoted portions of the application and alleged it relied on the truth of the answers contained therein; that the answers to questions 16 and 21 were false, untrue, and incomplete, in that Ozie Walker was not in good health, but at the time had cancer or tumor of the uterus, and knew she had such cancer or tumor, and had received treatment therefor in the fall of 1925, prior to the application; that such answers were material to the risk, etc. It also pleaded the first-quoted provision of the policy and that on the date of the policy (December 14, 1925) the assured was not in sound health because she then had cancer or tumor of the uterus, which finally caused her death. The premiums which had been paid with interest were tendered the plaintiff.

In bar of recovery of the attorney's fees and 12 per cent. damages, it was pleaded that demand for payment was not made until June 14, 1927, and before payment was refused and before the expiration of 30 days thereafter the suit was filed on June 18, 1927.

Briefly, the issues submitted to the jury were:

(1) Whether Ozie Walker was in sound health on December 14, 1925.

(2) Whether she was afflicted with cancer on December 14, 1925.

(3) Whether demand was made on the defendant for the amount stipulated in the policy, and, if so, the approximate date of such demand.

(4) What was a reasonable fee for representing the plaintiff.

(5) Whether the representations made by Ozie Walker as to her health and physical condition were material.

(6) Whether the representations were such that defendant would not have written the policy had it known her true condition.

A. Whether Ozie Walker was in good health on December 2, 1925.

To which the jury answered: (1) "Yes." (2) "No." (3) "Yes." (4) "$150." (5) "Yes." (6) "No." A. "Yes."

Under the quoted provision in the policy appellant would not be liable, except for return of the premiums paid, if the assured was not in sound health upon the date of the policy. Ins. Co. v. Betz, 44 Tex. Civ. App. 557, 99 S. W. 1140; Ins. Co. v. Crystal (Tex. Civ. App.) 272 S. W. 262; Wright v. Ins. Co. (Tex. Com. App.) 248 S. W. 325.

On May 22, 1926, or a day or two thereafter, Dr. Brown operated upon assured and removed a large abnormal ovarian tumor the size of an infant's head. A laboratory examination disclosed parts of the tumor to be cancerous. She died March 23, 1927, of cancer of the womb, which was a continuation of the cancerous tumor previously removed.

Appellant assigns error to the refusal of a peremptory instruction in its favor requested upon the theory that the undisputed evidence shows the assured was not in sound health upon December 14, 1925, the date of the policy.

Upon careful consideration of the testimony of the doctors testifying, the conclusion is reached that their testimony fails to show conclusively that she was not in sound health upon that date, or not in good health upon the date of the application.

It is quite clear they were unable to say definitely she was then cancerous. If it be assumed, as we think it should be, that their testimony conclusively shows she must have had the tumor on December 14, 1925, nevertheless they could not tell whether it was then malignant or not. Dr. White testified:

"A tumor is not a serious thing unless it becomes malignant. It is what we call benign."

Dr. Nixon examined assured some time in December, 1925. He testified:

"Where you have cancer of the uterus, you would look for the manifestations around the groin, about the liver, or some intestine of the stomach, but there was nothing like that with Mrs. Walker at the time I saw her. A cancer will grow fast on some and slow on others. * * * At the time I saw Mrs. Walker I pronounced it a cyst or tumor of the uterus. I did not have an idea of a cancer at that time. I had no idea of malignancy at that time."

It will serve no useful purpose to discuss the evidence at length. Conceding the assured must have had the tumor on the date of the policy, yet it may not have been of a dangerous type. The burden rested upon appellant to show it was of such a character that she could not be then considered to be in sound health, and, while we think the evidence tends strongly to support the view that she was then in a dangerous condition,...