Texas Prudential Ins. Co. v. Dillard

• Decision Date: 20 November 1957
• Docket Number: No. A-6211,A-6211
• Citation: 158 Tex. 15,307 S.W.2d 242
• Parties: TEXAS PRUDENTIAL INSURANCE COMPANY, Petitioner, v. Oral Vera DILLARD, Respondent.
• Court: Texas Supreme Court

Page 242

307 S.W.2d 242

158 Tex. 15

TEXAS PRUDENTIAL INSURANCE COMPANY, Petitioner, v. Oral Vera DILLARD, Respondent.

No. A-6211.

Supreme Court of Texas.

Nov. 20, 1957.

Rehearing Denied Dec. 18, 1957.

Thompson, Knight, Wright & Simmons, Pinkney Grissom and David M. Kendall, Jr., Dallas, for petitioner.

Joseph W. Geary, Jr., W. S. Barron, Jr., Dallas, for respondent.

GARWOOD, Justice.

The application for writ of error in this case and the answer thereto present two questions, as follows: (1) As a matter of law on the evidence was the deceased insured, Clarence Gurthery Dillard, not in good health within the meaning of the life insurance policy in suit when the policy was delivered to him on or about April 15, 1953, by petitioner, Texas Prudential Insurance Company? (2) if he was not, has the petitioner insurer waived the 'good health' provision or its right to invoke it in this suit? We hold that the insured was not in good health and that there was no waiver.

The insured applied for the policy on a 'nonmedical' basis on March 30, 1953, the application specifying a death benefit of $2,032 in favor of his mother, the respondent Oral Vera Dillard. As hereinfter more fully stated in connection with question (2) above, the application form, or page, on which the insured made his application contained no inquiry as to whether he had epilepsy, and he was not asked that question by petitioner's soliciting agent, nor was a medical examination required. The policy was duly issued as applied for with an effective date of April 15, 1953. The insured died on January 20, 1954. Petitioner denied liability on the policy and this suit was instituted thereon.

The policy provision in question reads:

'This policy shall not be deemed to be in force nor shall the Company be liable hereunder until this policy is manually received by the Insured during his lifetime and while in good health and full settlement made for the first premium called for on the first page of this policy; then upon such delivery it shall become effective as of the effective date of the policy.'

The particular defense based on this provision was made the subject matter of a single special issue to the jury, as follows: 'Do you find from a preponderance of the evidence that on April 15, 1953 Clarence Guthery Dillard was in good health?' The jury answered 'Yes'. (Other findings confirmed that the insured had actually made representations of good health, or absence of bad health, and of not having consulted physicians within the preceding five years, as set forth in his application. It was also found that these representations were believed by the soliciting agent who took the application. However, further findings were to the effect that such representations were either not false, not material, not relied on by the petitioner insurer, or not intentionally made. Apparently as a result of these latter findings the petitioner insurer does not at this stage rely on the defense of misrepresentations as such, but only on a breach of the above-mentioned 'good health' stipulation in the policy itself.) Judgment was entered for respondent on the jury verdict and the Court of Civil Appeals affirmed. 297 S.W.2d 265. Petitioner here contends, as it did below, that as a matter of law on the evidence the insured was not in good health on the date in question and that accordingly a valid condition precedent to the policy's becoming effective was not satisfied. American Nat Ins. Co. v. Lawson, 133 Tex. 146, 127 S.W.2d 294.

The testimony in this latter connection is largely uncontradicted. It appears that the insured was twenty-four years of age at the time the policy of insurance was delivered, was somewhere between five feet, six inches and six feet tall, weighed approximately one hundred and sixty-five pounds, was strongly built and had the appearance of being in good health. Moreover, at that time, there is no evidence of any internal or nonapparent illness or abnormality except as hereinafter stated. At least as early as 1944, however, at the age of 16 years, he had suffered a convulsive seizure of a type commonly associated with epilepsy. About a year and a half later (1946) he joined the Army, but within less than two months thereafter was given a medical discharge for 'psychoneurosis, conversion reaction'. In August and October, 1947, he consulted a Dr. Rounsaville, whose testimony is hereinafter discussed. This physician prescribed for him dilantin sodium, a sedative kind of drug, generally prescribed only for epileptics, which tends to suppress convulsions. While the insured took this medicine more or less regularly thereafter, in the latter half of 1948, he entered, and spent approximately a month in a Veterans' Administration Hospital, where his illness was diagnosed as epilepsy and where he suffered additional convulsive seizures.

Except for his time out at the hospital in 1948, he evidently worked more or less regularly, although for different employers, from the time of his medical discharge from the Army in 1946 until May, 1953, or very shortly after he took out the policy in suit. At that time he ceased work for some two months, resuming employment in July, 1953, only to stop again some four months later-in November, 1953. While still unemployed, on January 17, 1954, he began to suffer a series of continuous convulsive seizures, which culminated in his death on January 20th. Although the record does not give the specific dates of all, or even many, of his seizures, nor connect them clearly with his periodical suspensions or changes of employment, the only fair inference is that, between 1944 and the onset of his final series of convulsions in January, 1954, he suffered an average of more than one seizure per year, including at least one in each year prior to taking out the policy in suit in 1953.

The principal witnesses testifying on behalf of the respondent beneficiary as to the generally healthy appearance and activity of the insured were the respondent herself, her daughter (sister of the insured) and a young lady, Mrs. Caldwell, who, prior to her marriage, was a high school classmate of the sister and friend of the latter and the insured. The first two witnesses lived in the same house with the insured up to and including the time the policy was taken out. However, Mrs. Caldwell appears to have known him largely as an incident to her acquaintance with his sister, and seems to have seen little of him after 1948, around which time she apparently married Mr. Caldwell. All of these witnesses testified unequivocally to the fact of the respondent's having seizures prior to the time he took out the policy, and the portion of their testimony pointing toward good health of the insured is obviously qualified accordingly.

A sample of the testimony of the respondent is:

'Q. Now, from your knowledge, do you know whether Clarence had Epilepsy? A. Well, that is what they called it. Now, I don't know. As far as I know-that is all I know.

'Q. From 1948, from the time he got out of the Army, up until the time of his death, tell this jury approximately how often he would have such attacks, if he had them at all. A. Well, sometimes he would go as high as almost a year; and sometimes then he would have one in six months-go six months without having one.

'Q. Now, except for the interval of time in which he was actually having such an attack, did he ever evidence any other symptom of ill-health to you? A. No. sir, not ever'.

The respondent also confirmed that the insured went to the Veterans' Hospital in 1948.

Samples of the testimony of the sister are:

'Q. Did you ever observe anything else concerning Clarence's condition other than these periodic attacks that he might have? A. No, sir.

'Q. Tell this jury the frequency, if at all, of any attacks that Clarence might have had. A. You mean how often?

'Q. Yes. A. I know one time he went a year or so without having one.

'Q. He did have seizures? A. He had seizures, yes.

'Q. Was he taking dilantin all the time? A. He was taking some medicine. I guess that is what it was. I think that is what they called it.

'Q. Did he ever not take the dilantin or the medicine? A. Yes.

'Q. On what occasions did he not? A. He would stop taking it to see if he was cured. I mean, he would think he had taken it long enough to be cured, and he would stop to see if he was cured.

'q. When he stopped taking it, then what happened? A. After so long a time he would have a spell'.

The sister also testified to the details of a typical seizure of the insured, describing them as convulsive in character. She stated that she considered him to be in danger of strangling at such times and that his brothers, if present, 'would get a spoon or something and hold his tongue to keep him from biting it.' She also referred to seizures occurring while the deceased was seated and while he was standing, stating that in the latter instance he would fall down and, upon regaining consciousness thereafter, 'would complain of headaches and he would know if he had hurt himself.' Mrs. Caldwell, although obviously not in the company of the insured nearly as often as were his mother and sister, admitted to witnessing his seizures on 'two or three' occasions. The other witnesses as to the healthy appearance and conduct of the insured, to wit, Mr. Caldwell and the insurance agent, Leonard G. Killough, were clearly not in a position to, and did not purport to, contradict the fact of the seizures, nor did any witness purport to do so or to minimize their dramatically serious character. Nor, unless as above noted, did any witness purport to minimize the number of the seizures occurring prior or subsequent to the taking out of the policy.

Dr. Rounsaville above mentioned was the only medical witness at the trial. He testified that the insured probably had epilepsy even during such time as his seizures were suppressed by medicine. He also testified that there are three...