Wichita Falls Protective Ass'n v. Lewis

• Decision Date: 25 June 1932
• Docket Number: No. 12690.,12690.
• Citation: 52 S.W.2d 134
• Parties: WICHITA FALLS PROTECTIVE ASS'N v. LEWIS.
• Court: Texas Court of Appeals

52 S.W.2d 134

WICHITA FALLS PROTECTIVE ASS'N v. LEWIS.

No. 12690.

Court of Civil Appeals of Texas. Fort Worth.

June 25, 1932.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Action by C. C. Lewis against the Wichita Falls Protective Association. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

George & Brannan, of Wichita Falls, for appellant.

Bunnenberg & Nelson, of Wichita Falls, for appellee.

DUNKLIN, J.

The defendant, Wichita Falls Protective Association, an unincorporated association, with its principal office and place of business in Wichita county, has appealed from a judgment for $700 rendered in favor of C. C. Lewis, plaintiff, on a life insurance policy issued by the defendant on the life of the plaintiff's wife, Mrs. Carrie Bess Lewis, in which the plaintiff was named as beneficiary.

The case was tried before the court without a jury, and since the record contains no findings of fact, with conclusions of law by the trial judge, every reasonable inference in favor of the judgment and having support in the record must be indulged.

The statement of facts shows that the policy sued on, which is designated as a certificate of insurance, was issued on the 2d day of May, 1931, upon an application in writing for membership in the defendant association made on the same date in the name of Carrie Bess Lewis. In the policy Mrs. Carrie Bess Lewis was designated as a "member" of the association, and paragraph 3 of the policy reads as follows: "That said member agrees to the stipulation herein that this certificate shall only bind the Wichita Falls Protective Association, of Wichita County, to pay to the order of C. C. Lewis, husband, the sum of one dollar received from each member in good standing at the time of his or her death, said amount not to exceed $1000 should he or she die in good standing in the Wichita Falls Protective Association."

Mrs. Carrie Bess Lewis died on May 10, 1931, eight days after the policy was issued. The written application for the policy was on a printed form, the blanks in which were filled out by the plaintiff C. C. Lewis himself, who also signed his wife's name thereto with her subsequent approval and ratification. At the time the application was made and the policy was issued, plaintiff paid to the defendant association the sum of $2, and by reason of that payment the policy was in force at the time of the death of the insured.

The written application for membership made in the name of Mrs. Carrie Bess Lewis and addressed to the defendant association embodies the following:

                            none               
                  "Physicians  attended or consulted during
                last two years
                  "Dr. ________ Address ________
                I am not expecting surgical attention or anything
                to jeopardize my life except    none   
                I am in good health and good physical condition
                except ________. I understand that
                misrepresentation renders this application
                null and void
                  "Applicant Carrie Bess Lewis. Send premium
                notices to C. C. Lewis. Town or City
                Wichita Phone 4391. Remarks ________
                                    "Carrie Bess Lewis."
                

Among others, the policy embodies the following provisions:

"This certificate Witnesseth that Carrie Bess Lewis is this day admitted a member of Group A of the Wichita Falls Protective Association of Wichita County, subject to the following conditions:

"1. That the membership is based on the application, which application is filed in the office of the Wichita Falls Protective Association, and is made a part of this contract."

"It is also agreed that if any untrue statement or statements have been made with fraudulent intent in the application as to age, health, family history or any other question that would materially increase the risk assumed, this certificate becomes void and of no effect."

The testimony shows without controversy that Mrs. Lewis died as the result of cancer of the lungs, and that she had had symptoms of cancer in her system for more than two years prior to her death. Plaintiff, who was a witness on the trial, in effect admitted such to be true.

It thus appears that the statement in the application that "I am in good health and good physical condition" was untrue; and one of the defenses made to the suit was that, since the same was false, and since the application was expressly made a part of the contract of insurance, the policy was voided under the further provision in the application...