Taylor v. Atlanta Life Ins. Co., 12745.

Decision Date03 June 1939
Docket NumberNo. 12745.,12745.
Citation130 S.W.2d 889
CourtTexas Court of Appeals

Appeal from County Court at Law No. 2, Dallas County; Owen George, Judge.

Action by Vanderbilt Taylor and wife against the Atlanta Life Insurance Company to recover upon a policy of life insurance issued on the life of Flay W. Tyler by defendant. From a judgment for defendant, plaintiffs appeal.

Reversed and judgment rendered for plaintiffs.

Harvey C. Ford and Floyd W. Snow, both of Dallas, for appellants.

Taylor, Irwin & Irwin, of Dallas, for appellee.

BOND, Chief Justice.

This suit was instituted by appellants to recover upon a policy of insurance issued on the life of Flay W. Tyler, by the Atlanta Life Insurance Company. The insured died on July 10, 1936, and on August 21, 1936, the beneficiary, Rachel Taylor, made proof of death, or claim, within the terms of the policy, containing answers to questions, material here: (1) That the insured died on July 10, 1936; (2) that her death was caused by pneumonia; (3) that she had been confined to house by last sickness "two weeks"; and (4) that "her health was first affected two weeks prior to death". Attached to the claim, as required by the insurer, on form furnished by it, was the certificate of its district agent, or superintendent, J. H. Mackey, that he had personally investigated the particulars of claimants' proof of death, or claim, as presented, and in response to question, "(10) Do you consider the claim a just one?", he answered "Yes".

The policy provides: "3. Effective. This policy shall not take effect if the insured die before the date hereof; or if on such date the insured be not in sound health; but in either event, the premiums paid hereon, if any, shall be returned." On findings of the jury, which are fully supported by evidence, the policy was delivered on June 29, 1936, and the amount payable under its terms was $50. The jury also found that the insured was in "sound health" at the time the policy was delivered; that is, she was "free from disease or ailment that affects the general soundness and healthfulness of the system seriously, * * * and not affected with a disease or bodily infirmity of a substantial nature which affects the insured's general health, or which materially increases the risk to be assumed by the insurer". (Court's charge).

On the above jury findings, that the insured was in "sound health" at the time of the delivery of the policy on June 29, 1936, eleven days before her death, which apparently was in conflict with claimants' "proof of death" that the insured was confined to house by last sickness "two weeks" and her health was affected "two weeks prior to death", or fourteen days prior to her death, July 10, 1936, the trial court entered judgment for the Insurance Company.

Plaintiffs pleaded the policy and a compliance with the provisions as to furnishing proof of death, or claim. Defendant answered by...

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2 cases
  • National Casualty Co. v. Hampton
    • United States
    • Texas Court of Appeals
    • 3 décembre 1948
    ...Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69. In the light of above decisions, a careful study of this Court's opinion in Taylor v. Atlanta Life Ins. Co., supra; in the Coxson case, Tex.Civ.App., 177 S.W.2d 114 and in the Clark case, Tex.Civ.App., 197 S.W. 2d 869, all of which reflect o......
  • Coxson v. Atlanta Life Ins. Co.
    • United States
    • Texas Supreme Court
    • 19 avril 1944
    ...in Vann v. National Life & Accident Ins. Co., 24 S.W.2d 347 and a former holding of the same Court of Civil Appeals in Taylor v. Atlanta Life Ins. Co., 130 S.W.2d 889. We think the petitioner is correct as to the conflicts in both The policy was issued on March 3, 1941, and the deceased die......

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