Texas Prudential Ins. Co. v. Dillard

• Citation: 297 S.W.2d 265
• Decision Date: 22 November 1956
• Docket Number: No. 3391,3391
• Parties: TEXAS PRUDENTIAL INSURANCE COMPANY, Appellant, v. Oral Vera DILLARD, Appellee.
• Court: Texas Court of Appeals

Page 265

297 S.W.2d 265

TEXAS PRUDENTIAL INSURANCE COMPANY, Appellant, v. Oral Vera DILLARD, Appellee.

No. 3391.

Court of Civil Appeals of Texas, Waco.

Nov. 22, 1956.

Rehearing Denied Jan. 3, 1957.

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

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

TIREY, Justice.

This is a suit on a life insurance policy. Appellee is the mother of the insured and the policy was payable to her as beneficiary. The policy was issued on April 15, 1953, upon application dated March 30, 1953, and the insured died January 20, 1954. Appellee in her original petition alleged compliance with all of the conditions of the policy and made demand for payment of the face of the policy ($2,032), penalties, interest and attorney's fees. Appellant denied liability on the ground that insured was not in good health at the time the policy was received by him, and further that the insured in his application misrepresented material facts. Appellant filed its cross-action, seeking to have the policy declared null and void, and tendered into court the amount of the premiums paid on the policy. At the conclusion of the evidence the trial court overruled appellant's motion for an instructed verdict, and the jury in its verdict found substantially (1 to 6a incl.) that the insured was in good health on April 15, 1953; that on March 30, 1953 the insured represented to the agent of the appellant that he had received a medical discharge from the United States Army on account of a stomach disorder that did not require him to see a doctor and which did not bother him; that such representation was not on a material matter and that such representation was not false but found that appellant believed such representation and found that such belief of appellant's agent did not induce appellant's agent to issue the policy in suit, and that such representation was not intentionally made by insured for the purpose of inducing the company to issue the policy to him; (7) that the insured did not represent to the agent of appellant that he had not been treated by nor had he consulted any physician or physicians for any cause within the five years preceding the date of the application; (13 to 18 incl.) that the insured, on March 30, 1953, represented to the agent of appellant that he had not had any other disease or injury or surgical operation but found that such representation was not on a material matter, and that such representation was not false, and that appellant's agent believed such representation, but found that such belief of the agent of appellant did not induce him to issue the policy to the insured; that such representation was not intentionally made by the insured for the purpose of inducing the company to issue the policy to him; (19) to 23 incl.) that on March 30, 1953 the insured represented to the agent of appellant that he did not then have any physical or mental defect or injury or disease of any kind, but that such representation was not on material matter, and that such representation was not false, and that the appellant believed such representation, but further found that the belief of the agent of appellant did not induce such agent to issue the policy to the insured, and further found that such representation was not intentionally made by the insured for the purpose of inducing appellant to issue the policy to him. The court overruled appellant's motion for judgment non obstante verdicto and granted plaintiff's motion for judgment on the verdict, and decreed that appellee recover the face amount of the policy, plus interest, penalties and attorney's fees, and disposed of appellant's cross-action, and appellant seasonably filed its motion for new trial and perfected its appeal to the Dallas Court of Civil Appeals and the cause is here on transfer order of our Supreme Court.

Appellant's Point 1 is substantially that the court erred in overruling its motion for instructed verdict because the uncontroverted evidence showed that at the time insured received the policy of insurance he was not in good heath; and Point 2, the court erred in refusing to disregard the finding of the jury in answer to Special Issue No. 1 because there was no evidence to support such answer and the uncontroverted evidence showed that at the time the policy of insurance was received by the insured, the insured was not in good health. Point 3 is, the court erred in refusing to disregard the answer of the jury to Issue No. 1, and in overruling appellant's motion for new trial because the finding was against the great weight and preponderance of the evidence.

Appellee's first counter point is substantially that the jury found, on ample evidence, that the insured was in good health at the time of the issuance of the policy to him and the trial court properly rendered judgment in favor of appellee; and (2) that appellant has waived its right to assert lack of good health by the insured as a defense and is estopped to deny recovery on the insurance policy.

A statement is necessary. Testimony was tendered to the effect that the policy is non-medical; the insured suffered some form of convulsive seizure on September 19, 1944, at which time he was 16 years old; he enlisted in the Army on April 9, 1946 and received a medical discharge on May 15, 1946 for psychoneurosis, conversion reaction. Dr. Rounsaville saw insured on August 20, 1947 and on August 27, 1947, at which time he prescribed dilantin sodium; he took dilantin regularly for seven years, from 1947 to the date of his death in 1954; at the time he filled out the application he was taking dilantin sodium; insured's seizures occurred with varying frequency, sometimes occurring a year apart and sometimes after shorter intervals; the attacks occurred most often when insured became overexcited. Appellee testified to the effect that occasionally insured would attempt to see what would happen if he quit taking dilatin sodium; his sister also testified to this self-testing and said that insured would think he had taken the dilantin long enough to be cured and would stop to see if he was; inevitably he would have a spell and would have to resume taking the dilantin. Every witness who testified and who knew or had met the insured testified that he appeared perfectly normal except when he was having an attack. Insured occasionally went out with girls; he lived with his widowed mother; he took off several months from work in 1953 when he quit working for Continental Gin Company and before he went to work for Texlite Company, and then, after leaving his job with Texlite in November 1953, did not go back to work at any time prior to his death in January 1954. In 1948 insured was hospitalized in the Veterans Administration Hospital at McKinney and the records there show a diagnosis of epilepsy of the grand mal type; the history found in the final summary of the hospital showed that from the date of his first seizure until the time of his hospitalization in 1948 insured had averaged about one convulsive attack every two months; upon admission to the hospital the dilantin was discontinued and during the early days of hospitalization insured had three convulsive seizures, one of which was observed by his ward physician to be a classical grand mal seizure. Dr. Kern, whose progrees notes appear as part of defendant's exhibit 9, performed an encephalogram, the results of which he diagnosed as indicating atrophy of the brain. Exhibit 9 contains description, from the hospital records, of a convulsive seizure which insured suffered on August 23, 1948:

'Pt. had convulsive seizure in lab. this a.m. described by the technicians as brief tonic and clonic in character. They noticed patient swaying as if in a daze, then fell to the floor and convulsed for about two minutes. There was a slight amount of bloody froth at the mouth, and a spot on the right of his tongue where he had bit it. The pt. was lethargic on waking and on reaching the ward fell asleep.'

His sister testified in part:

'A. Well, usually if he was watching TV or something, he would just start staring at the television or whatever he happened to be looking at. He would usually start in with that and then maybe his eyes would start rolling or something and he would start jerking.

'Q. Did his whole body start jerking? A. His head would draw back.

'Q. He didn't start with his hands first and did not work up? A. Well, yes; his hands did draw kind of like this, back a little, but I think the first thing I noticed about him was his head, after his eyes started rolling, his head would start back.

'Q. Did he make any noise? A. A little with his mouth.

'Q. Did you ever consider he was in danger of strangling during one of these? A. Yes.

'Q. Were you ever informed anything about grabbing his tongue and holding it? A. My brothers, if they were present, would get a spoon or something and hold his tongue to keep him from biting it.

'Q. Then he would become unconscious? A. That's right.

'Q. How long from the start before he would become unconscious, from the start of the seizure? A. It wasn't very long. He wouldn't have it too terribly long; a few minutes.

'Q. How long would he remain unconscious? A. Sometimes ten or fifteen minutes, or maybe longer.

'Q. And I believe you testified that when he came to, he did not know what had happened? A. That's right.

'Q. When he came to, did he complain of any pain or headaches or anything like that? A. Well, headaches, yes. When he would fall, he would complain of headaches, and he would know if he had hurt himself.

'Q. Would he usually fall? A. If he was standing up, yes.'

The insured was 25 years old on the date he executed the application for the life insurance policy; he was big and husky, being approximately six feet tall and weighing 165 or 170 pounds; he was employed as a machinist and was regular in his attendance of his job; he...