Universal Life & Acc. Ins. Co. v. Burden

Decision Date26 October 1956
Docket NumberNo. 15748,15748
Citation294 S.W.2d 855
PartiesUNIVERSAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. M. N. BURDEN, Appellee.
CourtTexas Court of Appeals

Coleman & Whitten and Royce Whitten, Denton, for appellant.

R. B. Gambill and John L. Sullivan, Denton, for appellee.

BOYD, Justice.

Appellant Universal Life & Accident Insurance Company appeals from a judgment in favor of appellee M N. Burden for $1,000, being the face amount of a policy of life insurance issued to his wife, Charlotte L. Burden, together with interest, penalties, and attorneys' fees.

After answering appellee's petition with a denial of liability, appellant south judgment canceling the insurance contract.

Appellee, as agent for appellant, wrote the application for the policy. He was named as beneficiary. It was a non-medical application. Appellee did not obtain his wife's answers to the questions in the application, but supplied the answers himself. She only signed the application. Appellant had furnished appellee with an 'Agent's Manual' which, with reference to nonmedical applications, contained the following: "Duty of the Agent-222. It is obvious, therefore, that the company must depend upon the Agent to faithfully ask each and every question required to be answered by the applicant and to record all the answers and give any other information he may have regarding an applicant's insurability, * * *." On the application, and above appellee's signature as agent, were these words: 'Applicant seen in person, his answers to the above questions fully recorded, and his signature witnessed this 10 days of May 1954. Witness to applicant's signature.' The policy was issued on May 24, 1954. Mrs. Burden died on October 11, 1954. It was a twenty payment policy, the annual premiums being higher than those for an ordinary life policy for the same amount of insurance. The application was not attached to or made a part of the contract.

The jury found: that the insured was in sound health when the policy was issued; that the answer 'Yes' written by appellee to the question in the application, 'Are you now in good health and free from the effects of any illness or injury?' was not false; that the answer 'None' written by appellee to the question in the application, 'What illness or injury have you ever had which caused you to be confined to bed or hospital, or to be absent from work, or to consult a doctor? Give details here:' was false; that appellee did not intentionally make such false answer to induce appellant to issue the policy; and that $500 would be a reasonable fee for appellee's attorneys.

By points for reversal, appellant contends that there was no evidence, and the evidence was insufficient, to support the jury's finding that the insured was in sound health on the date the policy was issued; that there was a principal-agent relationship between appellant and appellee and that appellee cannot recover (1) because he violated his duty to his principal in that he failed to propound to the insured the questions in the application and to obtain her answers thereto; (2) that he represented to appellant that the answers on the application were the answers of the insured and concealed from appellant the fact that he had not propounded the questions to the insured, such representation being relied upon by appellant and the same being false; and (3) because appellee acted in a dual relation in that he represented the insured without appellant's consent in a matter where the interests of the insured and appellant were conflicting; that the judgment for attorneys' fees was not supported by proper pleading or competent evidence; and that the court erred in overruling appellant's motion for mistrial.

The policy provided that '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. Should the Insured not be alive or not be in sound health on the date hereof, any amount paid to the Company will be returned.'

The court defined 'sound health' as 'a state of health free from any disease or ailment that seriously affects the general soundness and healthfulness of the system; that is, that the insured be not afflicted with a disease or bodily infirmity of a substantial nature, which affects insured's general health, or which materially increases the risk to be assumed by the insurer.'

Appellee testified that his wife was working when the application was signed on May 10, 1954, and when the policy was issued on May 24, 1954; that she has worked for the same employer for more than seven years; that she worked 'every day' in May, June, July, August, September, and until October 5, six days before her death; that so far as he knew she was in good health during that time and had fully recovered from any previous illness she might have had. A woman friend and neighbor of the insured testified that she saw her every day and that the insured was very active in church work; that they were together in church every Sunday and attended church socials and other affairs together once or more each week; that she never heard the insured complain of any serious illness, and never knew her to miss any church function because of illness. The insured's employer testified that she missed only 24 hours of regular work during the fifteen months preceding October 5, 1954; that in September, 1954, she worked overtime every week except one; and that she was a very steady and dependable employee. Her physician, who died before the trial, testified by deposition that he had seen and treated the insured for different ailments occasionally for several years; that about ten years before her death she gave birth to a stillborn child; that about a year later she had a miscarriage; that she had had surgery; that she had a cystic ovary and other disorders; that he had never known her to have any serious illness or disease; that she was working all the time; that he did not see her between October 1953 and July 1954, but that so far as he knew she was in good health during that time.

We have no difficulty in reaching the conclusion that the evidence which the jury accepted was sufficient to support the finding that the insured was in sound health, as defined in the charge, when the policy was issued. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943; National Life & Accident Co. v. Muckelroy, Tex.Civ.App., ...

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  • Houston General Ins. Co. v. Pegues
    • United States
    • Texas Court of Appeals
    • 21 Mayo 1974
    ...(Tex.Civ.App., Houston 1st 1969, no writ); Flamm v. Ball, 476 S.W.2d 710 (Tex.Civ.App., Amarillo 1972, no writ); Universal Life & Accident Ins. Co. v. Burden, 294 S.W.2d 855 (Tex.Civ.App., Fort Worth 1956, no writ); Reserve Life Ins. Co. v. Kelly, 266 S.W.2d 395 (Tex.Civ.App., San Antonio 1......
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    ...1969, n.w.h .); Sanders v. Select Insurance Company, 406 S.W.2d 937 (Tex.Civ.App ., Dallas, 1966, n.w.h.); Universal Life & Accident Insurance Company v. Burden, 294 S.W.2d 855 (Tex.Civ.App., Fort Worth, 1956, n .w.h.); Stroud v. Pechacek, 120 S.W.2d 626 (Tex.Civ.App., Austin, 1938, n.w.h.)......
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    ...Co., 142 Tex. 544, 179 S.W.2d 943; Associated Employers' Lloyds v. Self, 192 S.W.2d 902 (Ref. N.R.E.); Universal Life & Accident Insurance Co. v. Burden, Tex.Civ.App., 294 S.W.2d 855. It was found by the jury in answer to special issue number 7 that appellee did not suffer any partial incap......
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    ...ref. n. r. e.; Roosth v. American General Life Ins. Co., Tex.Civ.App., 330 S.W.2d 652, writ ref. n. r. e.; Universal Life & Acc. Ins. Co. v. Burden, Tex.Civ.App., 294 S.W.2d 855, no writ; Colorado Life Co. v. Newell, Tex.Civ.App., 78 S.W.2d 1049, writ ref.; Great Southern Life Ins. Co. v. D......
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