Vann v. National Life & Accident Ins. Co.

• Decision Date: 05 February 1930
• Docket Number: (No. 1287-5350.)
• Citation: 24 S.W.2d 347
• Parties: VANN v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Texas Supreme Court

Page 347

24 S.W.2d 347

VANN v. NATIONAL LIFE & ACCIDENT INS. CO.

(No. 1287-5350.)

Commission of Appeals of Texas, Section A.

February 5, 1930.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Tom Vann against the National Life & Accident Insurance Company. Judgment for plaintiff was reversed by the Court of Civil Appeals , and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of trial court affirmed.

Houtchens & Clark, of Fort Worth, for plaintiff in error.

Hyer & Christian, of Fort Worth, for defendant in error.

SHARP, J.

Vann sued the National Life & Accident Insurance Company upon a policy dated the 17th day of May, 1926, issued upon the life of Mrs. Carrie S. Vann in the sum of $270, and 12 per cent. penalty and reasonable attorneys' fees. The National Life & Accident Insurance Company denied liability by reason of the terms of the policy, and alleged:

That Mrs. Vann was not in sound health, but was afflicted with carcinoma of the uterus. That, by reason of the condition of Mrs. Vann, said policy never became effective as a contract of insurance, and that there was no liability or obligation on the part of said insurance company, except for the repayment of such premiums as had been paid on said policy, which premiums were tendered into court for the benefit of the beneficiaries described in the policy.

That the statements with reference to Mrs. Vann being in good health were untrue and false, and that the representations were made for the fraudulent purpose of inducing the insurance company to issue a policy upon the life of Mrs. Vann, and that the insurance company was induced by the statements to issue the policy of insurance, and the policy would not have been issued except for the statements and representations. That the truth of the representations was relied upon by the insurance company, and that, if the company had known the true facts at the time of the issuance of the policy it would not have issued or delivered the policy. They tendered into court the sum of $10.15, being the amount of premiums, with interest thereon from date of payment.

The material facts in this case are as follows:

The policy involved in this suit contains the following provision:

"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 proposed insured not be alive or not be in sound health on the date hereof any amount paid the company as premiums hereon shall be returned."

Vann, the beneficiary in the policy, and surviving husband of Mrs. Vann, deceased, and the plaintiff in the trial court, testified substantially as follows:

"My wife and I were married, I think, in June of 1914. She had two children before she married me; all together we had six children. My wife was not complaining of bad health from the time of the birth of our last child. She was in as good health as any woman. The youngest of her children was six years old in June. The second youngest child was six or eight years old. Mrs. Vann went to the sanitarium for treatment sometime in March of 1926. She was treated by Dr. O'Bannon, one of the doctors in the sanitarium. He gave her a radium treatment and one or two X-ray treatments. She was in the sanitarium for something like eight days. Either the latter part of March or the early part of April she was discharged from the sanitarium. They told me they were treating her for cancer. Dr. Rumph told me it was a tumor. My wife did not complain to me before she went out to the sanitarium and before she went to Dr. O'Bannon. There were several other doctors that examined her and O'Bannon was the only one that called it a cancer. When I saw Dr. Rumph he told me that she had a tumor, and that I ought to have something done for her. One doctor called it a cauliflower growth, whatever that is. Dr. Rumph said it would cost me $135.00 to have it removed, plus the hospital fees. The next day she went out to the sanitarium and was treated for cancer. The cancer was in the uterus or womb. Dr. Rumph told me to get some iodine and have her wash with that and that would fix her up. I got a quart of that for her. The trouble that Rumph was prescribing for was the same thing that Dr. O'Bannon was treating her for. It was located in the same part of her body. Dr. O'Bannon did not tell me that she was not cured when she left the hospital in the spring of 1926, and he did not say during the first treatment that she was likely to die. He said that she had a bad cancer. He told me that he would not guarantee a cure, but thought that he would cure her. After my wife left the hospital the first time, when I took her back over there to see Dr. O'Bannon he said she was all right and in as good health as any-body. I was right there when he examined her and saw for myself. After she left the hospital I was right there with her at home every night from August to September. From my observation of her conduct and the way she got about from April to August 15th, I would say that she was in good health as far as I could tell. From the 8th day of April, the time she left the hospital, until around the 1st of September, she did her housework, milked and cooked just like she did before going to the hospital. During that time she was not confined to her bed as long as three days. She made no complaint to me about suffering. I took her back to the hospital every two weeks. The first time might have been three weeks and on those occasions the doctor would examine her, but he gave her no treatment during that time."

Miss Dorothy Vann, a daughter of Mrs. Carrie S. Vann, deceased, testified substantially as follows: That she had been living at home with her mother prior to her death all of her life. She was 13 years of age on the 25th day of February. That she remembered the date that her mother first went to the hospital in March, 1926, and when she came home after that time. That, after her mother came home, she did her housework, which consisted of washing and ironing and all of the housework. Mother came home in April, and from the time she came back from the hospital until in August or September before going back to the hospital she was not sick in bed again there at the house. "I did not hear her complain of any sickness or pain during that time."

Dr. O'Bannon testified as follows:

"I was acquainted with Mrs. Carrie S. Vann during her lifetime and treated her several times. I am connected with Harris' Sanitarium. I find that Mrs. Vann came to me for treatment on March 28, 1926, and I found that she was afflicted with a cancer of the cervix or uterus. This condition is also known as carcinoma of the uterus. I treated Mrs. Vann and observed her from that date to the time of her death. The character of treatment given Mrs. Vann at that time was with radium and X-ray. In the early part of my treatment of her she did discuss with me the nature of her ailment. I cannot recall the exact words that she had with me at that time other than I know how I explained to her husband the chances were that she would die, and I remember her telling me how much better she was feeling. That she was going to surprise me after all by getting well. When Mrs. Vann first came to me for this treatment this carcinoma condition was well advanced. From her own statement she had been treated before. Mrs. Vann did not enter the hospital when I first examined her. She entered the hospital on the 28th day of March, 1926, and based upon my experience and knowledge of medicine I would not say that a person afflicted with carcinoma of the uterus on the 3d day of May, 1926, would be a person of sound health. My records show that I gave her X-ray treatments on the 2d, 3d, 4th, and 5th day of April, 1926. It was then the 22d day of September, 1926, before I gave her another X-ray treatment. It was my impression after she was at the hospital first and had taken X-ray and radium treatments that her condition was much better. It was for that reason I did not give her any more treatments. She came back and I watched it and it was satisfactory during those times. It is possible for a cancer to be retarded and sometimes they never feel the effects of it during the balance of their life. From watching this condition of Mrs. Vann, it was satisfactory; that is all we could expect. She was able to be up and do her housework. I doubt if a doctor could have told by observation after she was discharged the first time from the hospital that she was suffering from anything like that. I remember on examining her I could not see any evidence of disease. Supposing that a cancer is treated with radium and X-ray and is properly retarded for a period of several months, so that in my opinion no further treatment was necessary during the period of time just mentioned, and if the cancer was not recurring or was not requiring further treatment, the person having that cancer would be in ordinary health so far as that person himself knew. It would not be bothering them a bit in the world. While this cancer was dormant or retarded, she knew nothing about it. She felt as good as she ever did during that time. Until the cancer would recur or start up again, the person would be in good health again from their own standpoint. Of course, among doctors we recognize there is a latent period, and we do not consider them in sound health for a period of five years. However, the patient themselves may consider they are in sound health.

"In September I noticed there was a recurrence of the cancer, and at that time I was unable to check it. As to what causes a recurrence, that is the natural course of cancers unless they are completely eliminated. We are never sure we have eliminated cancer until after a period of some years, but her condition during that period of observation was very satisfactory. There was no reason to think that she needed any further...