Southern Surety Co. v. Benton

• Decision Date: 01 December 1924
• Docket Number: (No. 7229.)
• Citation: 267 S.W. 302
• Parties: SOUTHERN SURETY CO. v. BENTON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

267 S.W. 302

SOUTHERN SURETY CO. v. BENTON.^*

(No. 7229.)

Court of Civil Appeals of Texas. San Antonio.

December 1, 1924.

Rehearing Denied December 24, 1924.

Appeal from Bexar County Court; McCollum Burnett, Judge.

Action by Jonas A. Benton against the Southern Surety Company. From judgment for plaintiff, defendant appeals. Affirmed.

Barrett & Barrett, of San Antonio, for appellant.

Carlos Bee and Douglas, Carter & Childers, all of San Antonio, for appellee.

COBBS, J.

Appellee sued appellant to recover on a policy of insurance issued by appellant, described as "Business and Professional Men's Policy," for loss of time resulting from sickness or illness alleged to be covered by said policy, and for 12 per cent. additional damage for failure to pay within the time required by law, and for $100 reasonable attorney's fees. It is alleged that on July 17, 1923, appellee became ill from intestinal intoxication, and was confined to his bed with said illness for a period of 4 months, during which time he was unable to follow his occupation or attend to any business.

The answer of appellant was general and special exceptions and denial of any liability: First, because at the date when said policy took effect the appellee was not in good health, and free from the effects of any disease, injury or bodily infirmity, as required and agreed to by the application for said policy of insurance, but was afflicted with tuberculosis and pyorrhea at the delivery of the policy, which diseases were the contributory causes upon which appellee bases the claim for sick indemnity; second, that the policy was obtained by misrepresentations that were material to the issuance of the policy, and actually contributed to the contingency upon which the policy was issued, and falsely and fraudulently answered question No. 9, therein, to wit, "Does your income per week exceed the gross amount of single weekly indemnity under all policies now carried by you?" which question was answered "yes" by appellee, whereas he was earning only $40 per week or $160 per month, and the policy provided for a sick indemnity of $200 per month; and that appellee falsely and fraudulently answered question No. 15, in said application, "Are you in sound condition, mentally and physically?" to which his answer was "Yes," when he was at that time afflicted with pyorrhea and tuberculosis, and was drawing compensation therefor from the United States government as a disabled soldier; also that he falsely and fraudulently answered question No. 16, in said application, "Have you been disabled or had any medical or surgical treatment during the past five years?" by answering "No," and failed to disclose the aforesaid ailments, and concealed from the appellant his true physical condition.

Appellant further alleged that:

"The plaintiff was in default of the agreed premium for the policy until on or about July 18, 1923, one day after his alleged illness began, and the policy provided that in such event it would only cover such sickness as might begin more than 10 days after acceptance of said premium."

And that:

"The defendant notified plaintiff on ...