Washington Fidelity Nat. Ins. Co. v. Stewart, 12729.

• Decision Date: 29 October 1932
• Docket Number: No. 12729.,12729.
• Parties: WASHINGTON FIDELITY NAT. INS. CO. v. STEWART.
• Court: Texas Court of Appeals

54 S.W.2d 838

WASHINGTON FIDELITY NAT. INS. CO. v. STEWART.

No. 12729.

Court of Civil Appeals of Texas. Fort Worth.

October 29, 1932.

Rehearing Denied November 26, 1932.

Appeal from Tarrant County Court; P. J. Small, Judge.

Action by Thomas Stewart against the Washington Fidelity National Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hyer & Hawkins, of Fort Worth, for appellant.

G. R. Lipscomb, of Fort Worth, for appellee.

CONNER, C. J.

This is an appeal from a judgment in favor of Thomas Stewart in the sum of $204. Thomas Stewart sued as the beneficiary under a policy of insurance taken out by him in behalf of his mother, Mrs. Fannie Stewart. The application for the policy was dated May 26, 1930; the policy was issued on June 1, 1930; and Fannie Stewart died about the 15th day of June, 1930.

The policy provided, among other things, that if the insured was "not in sound health" at its date, the company might declare it void and its liability limited to a return of premiums paid thereon.

The appellant company pleaded several defenses, all of which were decided in favor of plaintiff, but only one of which are we called upon to consider by appellant's assignments of error, to wit: The appellant pleaded, among other things, that Thomas Stewart at the time of the application for the policy stated that his mother was in good health, whereas in fact she was not in good health, and that hence under the terms of the policy the plaintiff was entitled to recover only the weekly premiums paid by him, which aggregated $1.30, which had been returned.

In answer to special issues, the jury found that Fannie Stewart at the date of the application was 57 years of age, and that in fact that was her age. The jury further found that she was in good health at the date of the application and appellant's insistence is that the evidence is wholly insufficient to support the finding and judgment upon the latter issue.

The state of Fannie Stewart's health at the date of the application and of the issuance of the policy was a special defense presented by appellant, and under well-settled rules the burden was upon appellant to establish its truth by a preponderance of the evidence. The evidence is substantially as follows:

After the plaintiff had introduced the policy, proved due notice of the death of Fannie Stewart, and that the policy had been unpaid, he rested his case. Thereupon defendant, appellant here, took charge of Thomas Stewart and upon cross-examination proved by him that at the date of the application he (Thomas Stewart) lived in Fort Worth, Tex.; that his mother then lived in Navasota; that his mother had authorized him to take out a policy in her name with him as beneficiary; that he was to pay the premiums; that his mother died about two weeks after the issuance of the policy; that he was told that "she died with a stroke—paralysis."

"Q. Now I believe you stated awhile ago that you did not know whether your mother was sick or not at the time the application was made? A. No, sir, she wasn't sick when I put her in. I told him that. I told him all that he asked me.

"Q. You told him that she wasn't sick? A. I told him that."

In answer to further interrogatories the witness stated that he had not seen his mother for some two weeks before the application for the policy, and that she was not then sick.

Appellant then introduced in evidence the application card that had been signed by the plaintiff for his mother. The application stated the age of his mother at her last birthday as 51; premium, 30 cents; amount of insurance, $204; date of her birth, third month, second day, year 1880; beneficiary named, Thomas Stewart; age 37. The signature of the applicant signed, "X Fannie Stewart," witnessed by "F. L. Smith, agent," on May 10, 1930.

On the reverse side of this card, under the heading "Medical Examination or Inspection," were statements to the effect that Fannie Stewart was 51 years of age; that there were no physical or mental defects or infirmities present; that there were no reasons to suspect intemperate or immoral habits; that there was nothing about the home to impair the health of insured; that neither parent, brother, or sister, had died of consumption or pulmonary disease; that insured during the last five years had had no serious illness or injury; that the signer of these statements was satisfied that he had inspected the life proposed for this insurance and had personally witnessed the signature to the card and recommended approval of the application. This report was signed, "F. L. Smith, Agt."

Defendant introduced Dr. A. I. Goldberg, a qualified physician who had been practicing a little over five years and who was the examining physician of the company, but who had never seen the deceased, and who testified as an expert only. We quote the following from his testimony:

"Q. I will ask you, Doctor—will a general hardening of the blood vessels cause what we call, or what doctors call, apoplexy? A. Yes, sir, they will rupture and you will get hemorrhage there.

"Q. Explain to the jury just what will follow the general hardening of the arteries, what causes hardening of the arteries? A. Hardening of the arteries is due to a rise in blood pressure. The heart pumps the blood with such pressure that the elasticity of the arteries is lost and nature's effort after this is lost is to protect the arteries; in doing so, calcium salts are deposited in the coats of the arteries. After so long a time the blood pressure continues to be high and the arteries are no longer elastic, they are brittle and easy to rupture, and therefore they will rupture.

"Q. Does hardening of the arteries always follow high blood pressure? A. Yes, sir.

"Q. Doctor, state in your opinion as a doctor if apoplexy is or not sometimes caused by a general hardening of the arteries? A. Yes, sir.

"Q. Now, in your opinion, as a general rule how long would be required for a general condition of hardening of the arteries to develop to such an extent that apoplexy would have resulted? A. That would be over a period of time; I would say anywhere from one to several years.

"Q. Is it possible, Doctor, that such a condition could exist and develop in a period of nineteen days? A. No, sir.

"Q. Is it possible that such a condition could develop in six months, in your opinion? A. No, sir. It would take a period of time for an artery to become hard, because calcium salts would have to be deposited there, and it takes quite a while for nature to come in and do this, and it would take time; after the arteries become hardened, why, they then lose their elasticity as I said before, and they will rupture, and that also takes some time.

...