174 S.W. 687 | Tex. App. | 1915
In his application for the insurance the appellee answers:
"I have never had fits, diabetes, kidney disease, syphilis or any sickness or disorder of the brain, spine or nervous system, am in whole and sound condition mentally and physically."
The company defends upon the ground that there had been a breach of the warranties contained in the application and policy, in that by this answer the insured had represented himself as being "in whole and sound condition mentally and physically," when in truth before and at the time of the application he was one-legged. The only proof or contention with respect to the state of health or condition of the insured rests upon the bare fact that the insured at some previous time had a leg amputated at the *688 knee, and as a consequence was "one-legged." It is concluded that the court did not err in directing a verdict for appellee. It is believed that from the fair interpretation and intendment of the language of the questions and answers, construed together, there is not shown the evident untruth or falsity, so as to avoid the policy, of the answers in the application. It is stated as a fair rule that in determining the question of falsity the questions and answers of the application ought to be construed liberally in favor of the insured. The language "in whole and sound condition mentally and physically" is capable of different meanings. The word "whole" is defined: "(1) Hale, hearty, strong, sound, well;" and "(4) entire, complete, without omission, reduction or diminution." Century Dictionary and Cyclopedia, vol. X; Webster; Standard. The word "sound" is defined: "(1) Hearty, not diseased;" and "(2) whole, uninjured, unmutilated." Id. The word "condition" is indefinite of application, and means "state or situation, as regards internal or external circumstances or plight." Id. Therefore in one meaning the language could refer to a well and not diseased state of mind and body apart from the bare fact of having one leg off, while in another meaning the language could refer and extend as well to health as to a whole body. As the answers run in the application there is ample room for the insured to have naturally understood that he was asked concerning diseases and ailments affecting his general soundness of health, and not specifically to the loss of a limb. And as he could reasonably and fairly have so construed the language, it is not thought that falsity of answer in avoidance of the policy could properly be predicated on the omission to specifically state the fact of the loss of a limb. This ruling is decisive of the appeal.
