National Life & Accident Ins. Co. v. Doman

• Decision Date: 25 September 1930
• Docket Number: No. 944.,944.
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. DOMAN.
• Court: Texas Court of Appeals

31 S.W.2d 865

NATIONAL LIFE & ACCIDENT INS. CO. v. DOMAN.

No. 944.

Court of Civil Appeals of Texas. Waco.

September 25, 1930.

Rehearing Denied October 30, 1930.

Appeal from McLennan County Court; Kyle Vick, Judge.

Action by Eddie Doman against National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Williams, Williams, McClellan & Lincoln, of Waco, for appellant.

R. W. Cowan, Geo. Clark, and J. J. Campbell, all of Waco, for appellee.

STANFORD, J.

This suit was by appellee, the named beneficiary in a life insurance policy, to recover of appellant $180, the principal of said life insurance policy on the life of Carrie Doman, wife of appellee, together with 12 per cent. damages and reasonable attorney's fees. In response to two special issues submitted to them, the jury found:

(1) The deceased, Carrie Doman, was in sound health on October 1, 1928, the date said policy of insurance was delivered to her.

(2) A reasonable fee for plaintiff's attorney in this case would be $75.

On said special issues so found the court entered judgment for appellee for $286.50, being the amount found to be due upon said policy, including attorney's fees, interest and 12 per cent. damages. Appellant has duly appealed and presents the record here for review.

Under its third and fourth propositions appellant contends the trial court erred in permitting the witness Dr. C. C. Collom, over the objection of appellant that the pertinent inquiry was the state of the health of the insured in 1928 and any other inquiry was immaterial, to testify as follows: "In my opinion, Carrie Doman's death did not result from disease which she had while I saw her in April, 1928. She died of heart trouble;" and, further, because the court erred in permitting Dr. C. C. Collom to testify, over the objection by appellant that such testimony was immaterial, irrelevant, and purely speculative, that "the condition myocarditis, which caused the death of Carrie Doman, could have arisen after October 1st, 1928." The policy made the basis of this suit was issued and delivered to Carrie Doman, the assured, on October 1, 1928. The policy provides: "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."

Dr. C. C. Collom, after properly qualifying as a medical expert, testified as follows: "I had occasion to examine Carrie Doman in 1928 and 1929. I saw her twice; once in 1928 and once in 1929 * * * I saw Carrie Doman in consultation with Dr. Bradford in the spring. I don't remember exactly, but it was somewhere in April, 1928. I think she had had a case of influenza at that time, and there was some question as to the possibility of there being an abscess in the pleural cavity, and the possibility of it having to be drained. That was the occasion of my visit at that time. We decided that she could get well without drainage, though. The next time I saw her was along about the 11th of January, 1929, one afternoon. I know that this was the illness which caused her death. Her condition at that time, as disclosed by my examination, was very serious. Her heart was leaking. In my opinion as an expert physician, that is what killed Carrie Doman * * * I said that I saw Carrie Doman in the spring of 1928, probably in April, and I never saw her at all between that time and January 11th, 1929. I didn't see her between those dates. * * * In my opinion, Carrie Doman's death in 1929 did not result from a disease which she had when I saw her in April, that is when I examined her in 1928. She died of heart trouble. The thing that I saw her with in the spring was emphysema. There was no connection between the two. My opinion, as an expert, is that the condition that I observed could have arisen after October 1st, 1928." In other words, Dr. Collom testified the thing the deceased had when he examined her in April, 1928, was emphysema, but that she died of heart trouble on January 11, 1929, and that there was no connection between the two. As far as the record shows,...