*1 ing рrofession complaint com- his interstate We think is> here wholly lacking transportation merce, jurisdictional such as the essen patients practice tial in is incidental. that it fails to show that the con spiracy complained profession as disclosed his of had restrain allegations complaint is nei- his effect on interstate commerce within meaning within Sec- ther trade nor commerce of the Sherman Anti-Trust Anti-Trust Act. of the Sherman allegations Act, nor are there Affirmed. indicating complaint that the ac- complained tions of defendants here monopoly within the
of resulted in a
provisions 2 of the of Section Act. prevented
Plaintiff been has not practicing profession, but analysis complaint is finаl profit- practice that he could ably it more the defend-
but for the acts of supplied.) (Emphasis ants.” ROOSTH, Rosa Lee Appellant, Spears The case of Free Clinic and Hos- v. pital Cleere, Cir., v. for Poor Children LINCOLN NATIONALLIFE INSUR- 197 F.2d is on almost all fours COMPANY, ANCE Appellee. with the instant case. Therein the court No. 17426. stated, page at 126: United States Appeals Court of healing practice “The arts Fifth Circuit. including Colorado, chiropractic, July 30,1959. wholly local character. The al- leged alleged conspiracy the acts Rehearing Sept. 4, Denied to have been done furtherance purpose thereof had for their
object monopolizаtion and re- purely local straint of activities. No fixing
price price maintenance for
professional or other services was There no intent
involved.
injure, or restrain inter- obstruct foreign state commerce. that a and inci- mere fact fortuitous conspiracy such dental effect may be the number acts to reduce persons who will come Spears countries to the states chiropractic
Hospital treatments such a not create relation be- does foreign interstate and tween com- local and such activities as to merce part make them commerce. Hutcheson, Judge, Chief dissented. purview “To come within the Act the Sherman restraint the obstruction commerce or com- must be direct and mercе substan- merely incidental or tial and re- (Emphasis supplied.) mote.”
was delivered to insured soon thereafter. paying monthly premiums After two 7, February insured died the death showing certificate as the cause of death hemorrhage rup- “Sub-arachnoid due to tured aneurism.” The insurer declined beneficiary’s policy claim under the ground insured had misrepresentations statements and his written for the knowing they making were false and insurer, them with intent deceive the claiming that said false statements and misrepresentations were material by risk assumed insurer relied and were by upon thereby it and it was induced policy; issue the the insured not in health when the was issued delivered to him. brought by This civil action the bene- ficiary jury was tried before court and, prolonged deliberation, ju- after the upon ry reported agree inability its discharged. Thereupon verdict and was argument court, hearing after considering briefs, judgment entered granting insurer’s for motion directed upon based verdict the averment by each defenses relied by been established “the uncontra- great preponderance dicted and/or Lowry, Spruiell, Charles F. Potter and by question presented evidence.” The Potter, Guinn, Tyler, Tex., for Lasater & appeal re- is whether defenses appellant. lied were established Flock, Ty- Ramey, Jack W. B. Thomas of such chаracter below court Reeves, T. Tex., C. J. Deit- ler, Gordon justified deciding jury is- that no Ramey, Wayne, Ind., Brels- schel, Fort presented, sues were and that defens- Tex., Flock, Tyler, of coun- ford, &Hull es should be sustained a matter of appellee. sel, for law; and that the insurer not waiv- ed, estopped prevail on, or was not Judge, HUTCHESON, Chief Before motion directed reason of verdict BROWN, Circuit CAMERON applica- notice from the of facts omitted Judges. prior acquired tion it to the issuance of reading policy. careful A Judge. CAMERON, Circuit record and us un- briefs convinces Dr. Harold Roosth December law, required the evidence der Texas Ty- practicing physician in (insured), the issues be decided Texas, applied Lincoln Na- The ler, error to them as decide a matter Company (insurer) Life tional law. appellant life insurance $50,000 beneficiary. prolonged wife, Roosth, trial below was and the Lee Rosa largely up date issued on the same record is made testi- policy gave mony nine examination and doctors who usual medical their after geries attending it, large degree, upon considerations based, opinions doubt, causes, the conse concomitants and the hypothetical questions. Without quences logically taken ac support for a into record there is contract, сompa- count in the execution insurance in favor of *3 every by parties is question act the in connec ny, not the but that is interpreted tion light in the duty search should be Ours before us. credible fundamental fact. to see if contains record have which the from originated, The idea insurance appel- for the in been warranted insured, with the with the insurer. but therefore, opinion, bewill lant. The encouraged sufficiently The insured felt the evidence largely pointing out concerning fined general recovery law appellant physical favorable to the go condition to in with his opinion, a which, in our of Texas under brother, doctor, also a construct made out. case for the was clinic, occupied year was exploring 1956. Insured was the cover- should facts fundamental A few ing mortgage of the by on the clinic are consid details kept mind in what was “mortgage referred to as made a that Lincoln first is ered. The specialty agent surance.” But Lincoln’s learned and its risks substandard of the importuned situation and according insured charges based were premium purchase life instead, insurance normally apply send- ly. premium The annual ing in to Lincoln on Nov. an in- 1st policy insured issued to quiry whether it would charge be interested made year, while $1,094 per writing in it. The by amount $1,922 desired him was policy for the issued insured $26,000, аpplica- and the cent. per 74.7 year, uprating of per signed by tion first him November had doctor knew that insurer The was for a commonly in infarction, myocardial amount. had a agent The application in inserted thrombosis, coronary known as a request that an additional General the American and that $24,000 amount of is issued. years The Company thereafter had, five physical examination company policy.1 Insured ex- rated-up sued him aminer, Young, Dr. C. B. up- based permanent cardio he awas knew that on the November application. 10th and, despite com In- cripple vascular parative agent, surer’s however, testified that the youth, on his ac cut down policy was application issued dat- future protect from himself tivities to 24th, ed December inevitably con medical heart He attacks. examination made November 11th. probably free never and was scious foreboding. anxiety pled Lincoln affirmatively measure insured willfully That occur knew this. also insurer specific answers to questions ingredient rence was the basic asked him the medical ex e.2 aminer, the con as set contract two out between the footnot It is servation, operation? Lincoln was re- 1. reveals treatment The record If * * so, give date and American of some of General’s details insurer swapped Answer: they information and that risks Hosp. “Medical determining Center cooperated Nov. [Hospital] Mother Frances applications for insurance would be ac- Hemorrhoidectomy 1950 cepted. Bailes, [Surgeon] Porter Jr. you “14. Have ever had Age 2. “9. Mother at Death 40 Cause following symptoms? diseases or a. of Death —Childbirth.” Apoplexy, Paralysis, Epilepsy, Loss of you “11. Have now disease or Consciousness, Dizziness, Nervous Break- yes give particulars.” disorder? If full down, Headaches.” Answer: “No.” Answer: “No.” “g. any physician Has you hospital, “13. Have years ever been in a your found above clinic, sanitarium or institution for ob- normal?” Answer: “No.” cоmplained misrepre- first lates to all of them. The an- swered, response question his moth- sented cause of the death Note years of 2, supra, er. Since thirteen insured was that he had been in two hos- age death, pitals, at the her clear time one in 1955 and one in He nothing of knew did any cause not answer that he had never been in Moreover, answer is bound on his institution. repetition only been “observation, have what related explained operation.” heard. His brother treatment Company’s family history point revealed—as the chief brother about this answer is that in- expressed taught it, they had, November, 1950, undergone sured —“That kidney complete рhysical she died condition result- *4 examination ing from childbirth.” That is essential- doctors of the Smithwick Clinic at Mas- ly what showed. Hospital death certificate sachusetts Memorial in Boston. connection, In that the evidence showed Company The introduced evidence insured was not admitted to said making a insured told someone patient institution as a or treatment. physical examination of that his him check-up His was a mere incident to his “mother 39 vascular died of cerebral at trip to Boston to take his brother who accident.” His was no recollection then seriously hypertension, was ill of and the apparently better when he than it was merely general insured submitted to the applied for this insurance. At the time during examination the time he was de- gave of the age he his mother’s waiting tained there for his brother to at death as 40. At time of the enough strength develop for the serious against asserted admission interest operation. gave age 1950 he her The as 39. death certificate showed against she was If The most serious admission any answer be should considered terest appellee relied was con- right consequence, history had to a be- tained the case which was gave lieve that the the best in- taken insured from insured on this occasion. Especially taking formation history availаble to him. The intern the case when, is this applica- true years ago on the same four this note: “About after tion, discharge army he showed that his father died at with no reservation early age coronary the bosis, throm- it was noted that he had a BP of replete completely evidence asymp- with He was 160/100-110. showing that his brother was tomatic' until September, the middle of hypertension victim extreme ‘indiges- for which when he two had weeks of operation performed a serious posterior tion’ followed full blown myocardial infarction. He recovered slowly has activity increased his Skipping 14(a) over to No. (internist) day. 5-6 hours of work concerning аfflictions, seven listed includ- coronary smoking Since the ceased has headaches, dizziness and there taking mg and has been 150-200 of di- abundant evidence that nev- every day, following cumarol other it er suffered from dizziness or headaches prothrombintime once week.” consequence. The contrary only can serve to make this physical examination then con- jury question. average lying showed ducted blood remaining questions respect pressure 186/129, markedly fell and, to which sedation, the insurer claims rest under after reduced to misrepresentations may testimony fraudulent 110/70; be disclosed also grouped, eyes “clear,” because the same evidence re- heart you X-ray, you any physicians “h. Have ever elec- “i. Have consulted
trocardiogram practitioners so, years blood If studies? five give particulars.” “No.” full Answer: causes?” Answer: “No.” by sedation, pressure dropped inated enlarged, the electrocardio- not gram figures to the subnormal was normal. 110/70. Under like circumstances those de this evidence In connection with respect visit, tailed with the first in Lincoln, considered that be should sured examined at the same institu exam- medical manual instructions 25, 1951,3 again June, tion Nov. history pressure iners, advised times, pressure 1953. Both the blood usually dis- beyond years should five levels were well under Lincoln had those history, regarded ; and, recent as more established as such a safe standard as given: following instruction disregarded. to be high- ago years “History three —if ago years evidence, systolic history In connection with that est highest should diastolic noted that the insured’s doctor than 170 was less * * disregard during brother had, testified that less than years, taken the insured’s blood things the 1950 connected Several on numerous had never occasions and worthy One is checkup note. are high; found it Ruskin testified and Dr. given history substantially thing. Except, the same *5 discharge began his with Boston doctors therefore, for one the time in 1950 when the military included and service from insured was under such tremendous and coronary thrombosis period of showing strain, nervous there no was ap- years the before six than more ended pressure that insured’s ever blood ex- insurance; moder- the plication and for that ceeded Lincoln which instructed mani- pressure ately was blood elevated disregard. examiners to In addition to festly mind in insured’s connected this, pressure appar- insured’s blood was experience. thrombosis the ently satisfactory to American General doc- the in 1950 The examination 1954, when it issued its and was in- showed Foundation tors of Smithwick 130/85, as noted the insurer’s exam- high, the but pressure be sured’s blood report iner on the of examination of in- negа- were hypertension for tests sured which this was issued. time, scarce- was insured tive. At that Moreover, preliminary report on the grueling ex- away years from the ly two 1956, 1, made Nov. as a feeler to deter- myocardial blown perience “full mine whether Lincoln would interest- in Boston he was infarction” and issuing policy, ed it was that noted very responsibility broth- for a sick full a current or recent 12-lead electrocardio- deciding charged duty er, with the of gram required by would be it. operation should whether a serious During years all the their associa of held testified doctor who performed. No practice of medicine insured experience would suсh an idea that never had mentioned his doctor broth high unusually produce suspected er not of itself that he was suffer hypertension resulting any sort; from nervous- of nor pressure from blood subject he mentioned to his doc worry. of the elevation That and ness (Ruskin) tor nor to his wife.4 was discovered connected then pressure urges is buttressed Appellee stress emotional fact drug that, sporadieal- elim- the stress was took the when sured Raudixon fact Pipes, Cir., 1958, average 464, 467, found in v. 255 F.2d The 86, systolic 138, lying, was, diastolic the fact there family systolic standing, diastolic never told close friends 1953, ly- nephritis figures strong sup- 99; June, that he had was port judge ing, systolic for and stand- the trial diastolic disease, ing, systolic if he did have diastolic he did not know it. indicated, in the recent case 4. This Court Omaha, Neb. Insurance Co. of World ly was of the fact he knew reach respect indicative different conclusions with suffering hypertension. questions was whether insured had disagreed prop- hypertension so, doctors about at all and if its charac- considering it drug, ; erties ter some whether he if the condition knew of only primarily tranquilizer a it important; existed considered remedy hypertension. part mildest he deemed it fol- episode It the insured was also shown that ques- thrombosis and other like poor being Such so, they presented diet. tions. lowed at times sаlt That is- hypertension, course was indicated for sues of fact of law. for loss of was also indicated but testimony Dr. Ruskin constantly weight, which insured was particular importance appellant. He lessening trying achieve, professor University was a of Tex of coro- likelihood of recurrence eighty papers written some thrombosis, nary constant on cardio vascular diseases. He ex first logical worry ex- source him amined insured in 1949 and continued planation proof for much of through see him and confer with him greatest appellee places reli- years until the end 1956. He had ance. never found evidence from his ex suffering hyper- If tendеd examinations that insured had ample proof tension, there hypertension any form, and it had is, hypertension, that was not essential never been mentioned to him. While amounting persistent, dis- to a chronic or writing the stand he told of a letter ease; hypertension was occasional February, 1955 to American General Life resulting that he was a *6 fact from the Company, reproduced spontaneously individual, reacting tense margin.5 excitement, worry, as stimuli to such Balay, Mr. underwriter for Lincoln himto stated Those closest frustration. National, admitted in that the letter was health, good appeared be in that he to Lincoln’s file. letter was submitted life, direсt did not a normal and led by to Lincoln in American connection avoiding tension and strain effort at with insured’s American ordinarily expected which would great for insurance. Lincoln reinsured a suspected was the he doctor that who many risks, American General’s and hypertension. The essential victim of practice companies it was the the two analysis foregoing demonstrates brief exchange Balay probably to information.6 Mr. al would that reasonable minds below He taken Com- has excellent Life Insurance General 140/90. 5. “American himself, including prolonged care of anti- pany, Texas. Houston therapy my coagulant Graves, under direсtion. Medi- Dr. Ghent “Attention: Report from Massachusetts Memorial cal Director essentially Hospital June on 1943 noted Graves: Dear Mr. findings (Q2 Q3). my and and care the same ECG under has been Roosth “Dr. Urinalysis counts, 2, 1949, sedimentation which time at since December rates, you all normal. taken. He ECG sent the second “Prompt appre- August return of will EOGs myocardial in infarction had Tyler ciated. 1948; and recov- in treated regards,' uneventfully. “With best time At G. I. ered Sincerely yours, enema, series, gall barium bladder series frequent- Ruskin, Arthur him M.D. negative. I have seen all during Assoc. Prof. Int. ly this time he Med. June until any symptoms Univ. of Tex. Med. and his Br. had never has Galveston, including examination, Texas” size of physical fluorosсopy heart have of the heart always Ruskin letter referred 6. The doctor to an except negative for blood been at examination Massachusetts Memorial findings highest on December — explained Hospital June, 1943, in but he always 105/100, 2, 1949, since then typographical was a error alleged brings in concerning fraud This us confidential examined so was (i) answering (h) subparagraphs investigators had who reports made Question 14, asking had whether to the in people close who were contacted electrocardiogram X-ray, or blood had him be a report showed sured and the studies, consulted one apparent health inman physiciаns practitioners regularly. who worked years judging In other causes. Ruskin’s, in taken This letter Dr. questions, it insured’s answers these testi underwriter’s connection with the in that he had con- must be borne mind finding by the mony, warrant would inquiry on November sented a trial possession insurer that the signed 1st, application on Novem- had inquiry put it of facts sufficient to 10th, subsequent application ber and a Hospital, Memorial at the Massachusetts 24, 1956, on December in all of amount and that failure do so myocardial infarction had disclosed appel of the claim to a waiver American of 1948 fact recovery failure lant is barred Company rated General Insurance had examinatiоns to reveal the the insured up him risk re- because of the increased events, evi all made in At Boston. sulting dispute he had it. from Without war persuasive dence towards has force electrocardiograms many made and ranting in Rus- been with Dr. constant touch rely surer failure did not kin and his brother connection with exam of said insured to disclose the fact the aftermath of 1948 seizure. Dr. ination.7 testified, instance, Ruskin No- reading episode A the entire careful Young December, vember or Dr. involving the examinations (Lincoln’s examiner) insured tele- fail- Boston leads to conclusion phoned long him distance several times not ure to reveal nearly examinations is these development im- connection with “a damaging appellant’s case beats, skips mature contractions extra events, Company At all contends. jumps which he con- of his heart evidence, in connection considered about.” The cerned doctor did *7 countervailing appel- proof with the on development consequence, sider the stating of nothing behalf, lant’s than a raises more frequently they that occur follow- jury question phase of case. the this ing myocardial infarctions as well as perfectly cases normal individuals of applies Much of what has been written they nervous, “when are exhausted.” appellee in to of the the contention that Manifestly no cause to with- insured had gave knowingly to sured false answers the insurer information hold from the questions (h).8 14(g) 11 and From these doctors fre- that he had consulted has been said it is that what above clear quently. insured did not commit fraud when coronary Anyone he answered that he was not at that time would know that suffering conscious patient disorder.9 remains and is disease or heart appears the date there is no evidence in- should be 1953. The content 8. It that dicating of answer was the letter the date is in- that insured’s false shows response correctly gave negative stated, because it to refers an when аny physician after examination made insured’s heart his above attack in 1948. found normal years. within the five Perry Co., v. Life Citizens Ins. Tex. 7. course, Excepting, Civ.App.1942, 743; Terry of the S.W.2d disabilities 163 Co., following heart attack of the v. Texas Prudential Ins. Tex.Civ. parties except 761; App.1935, and all below S.W.2d American the court 77 presented. Casualty Eastham, questions Cir., Fire & Co. v. 5 from the 729; 1950, 185 F.2d and Pilot Life Ins. Co., Cir., 1956, v. Pulliam Motor 4 Co. F.2d disability by Company reminded the necessi- his But the of seeks to avoid the ty constantly. taking of certificate, medicine statements the death claim of questions form in- the autopsy of that the demonstrates thought logically sured have could certificate is in death and that errоr they with hyperten referred consultation resulted from a cause to which electrocardiograms causing doctors, contributing sion be a factor. made, etc., respect fighting with disabilities Much hardest revolved than those with connected around this conflict between death justified least, At autopsy seizure. in certificate and as established honestly report testimony that he so did and the thought questions, they strue the even if Company’s doctor made wit who it. gave that he was opinions that, The seizure of nesses mistaken. their if the open findings insurer was book and autopsy correct, were given opportunity, leisure, make hypertension. at its must have died any investigation respect Appellant’s disagreed. with it desired doctors Much of consequences presuma- expert to bly and its testimony appellee dis judging in- In insured’s counted perform did so. because doctor who tent, autopsy although that, answers must be considered ed the admitted viewpoint aneurysm, in his what was he did not find evidence anof gave mind when proba there possibility them. was a even bility that evidence its existence had given But need brief consideration destroyed by “explosion.”10 been its urges appellee to the contentions which These conflicts were decision. hindsight. fervently, so based predicated upon These сer- are the death An extended discussion tificate indicated, cover the law is appellee issued to demise of concedes sured autopsy performed and the its brief that its suc defense cannot appellant. the consent cer- The death ceed prov unless these elements are attending physi- tificate “(1) representation; (2) furnished en: A cian of the condi- fact; (3) showed reference to material leading directly knowledge was sub- death falsity; (4) hemorrhage ante- deceive; "(5) arachnoid with intent to action aneurysm ruptured representa cedent causes taken in reliance agree parties due appellant’s Willis. The Circle of tion.” This accords with the that, argument agree if the was that cause of death stated all since certificate, not be there would case is be decided under Texas law and proof misrepresentations considering it, sitting relied we are *8 upon they Court, increas- material or that a we Texas it will sufficient if risk, supposed hyperten- simply ed the because list which estab authorities principles sion not these as the law of be embraced within lish Texa cause as certified. s.11 explicit this, destroyed aneurysm
10. “I wish to be about that was tire and could autopsy protocal recognized I have in this that stated not bе topsy, at the time of the au- aneurysm. say possible, find an That I did not does I would that is that not, may actually happened.” cannot be.taken that there was not be what present one time another be- one at or Statutes, 11. 14 Vernon’s Texas Civil Art. hemorrhage cause this which Dr. provides: 21.16 thing suffered a Roosth was massive “Any provision any pol- in contract or explosive would, I think would be which icy of insurance issued or contracted damage word to the best describe the provides this which in State that type thing produce. can that of And it ap- answers or statements made in the possible may probable and it is that plication such contract or in the aneurysm aneurysm existed an insurance, false, contract of if untrue or spot through served as the weak policy which shall render the contract or void hemorrhage voidable, effect, started and that the en- shall be of no
17g only This, believe, deci- one heavily upon the Appellant we relies conclusion. appellee v. Metro- in has to do. sion Court Madden failed of this 1948, Co., Cir., politan 5 Insurance Life appellee The contention that of insured A 709, 138 F.2d 151 A.L.R. good policy not in health when held reading that we of the case shows delivered, was issued that it did so though false, does representation, “a that not become under effeсtive the terms of it was unless not avoid the policy, analysis falls under the same deceive; that intent to conscious facts that in set forth above an- normally for is it was whether so made swering the false contention that an- though ques- jury; (even that given application. swers were matters of fact such relates to appellee upon The burden was to rather whether consultation there was a sustain this contention to show that opinion than as to jury proof no from there disease), suffering un- ill or could good in have found that insured was no less admits time, excepting, health at said to an intent clusion than there was that course, disability under deceivе, determine for the to resulting coronary labored from his fraudulent whether the answer was phase thrombosis. This law fact, is, de- intent made with Texas recent discussed our case good given ceive, or whether it was of American Ins. Co. v. Home Life is, faith, conscious without Zuniga, Cir., 1955, 228 F.2d Un- tent to defraud.” der case and the Texas cases dis- it, applying the law of cussed was also one there We were Metropolitan for decision. as announced Florida Poole, 1941, Fla. Life Ins. Co. v. Appellee under labors here an- Florida as So.2d law 386. The universally accepted rule that “Fraud square nounced in case seems presumed, never and the burden [is] Indeed, аs above with the law Texas. appellant prove it with reasonable disagreement stated, be no seems to there certainty by preponderance of convinc appellee’s af- parties that between certainly evidence.” That has rule unless fall must defense firmative agent appropriate here. repre- insured made proved that appellee accept seeking to induce Dr. knowl- facts to material sentations represented as its Roosth more falsity intent edge their prominent once he was than was issued deceive, outstanding community. citizen representations. And upon such reliancе Appellee’s evidence shows that he was be established propositions must reputation these man of means. A does minds reasonable lead not come without results can It effort. proof which defense terial fact and which does affect not constitute shall contract, brought unless risks assumed.” suit the trial thereof is shown And Clark v. see National Life & Acci misrepresented thing was ma- Co., 1947, matter 145 Tex. dent *9 actually contributed 820; Washington or risk to the terial 200 S.W.2d National contingency on said Anderson, or event Tex.Civ.App. v. Insurance Co. payable, and ; and 1936, due became S.W.2d 263 Great 94 Southern Life and so material con- Doyle, Tex.Com.App. Co. v. Insuranсe 377, be a case shall 1941, in 197; tributed 136 Tex. 151 S.W.2d by the court or determined to be fact of v. National Life Accident Vann & In trying jury Co., case.” Tex.Com.App.1930, such 24 surance S.W. provided in 14 Vernon’s Tex- 347, it is And v. and Coxson Atlanta Life 2d In Statutes, Art. Co., 544, 21.18: 1944, as Civil 142 Tex. surance 179 recovery any life, accident “No 943. S.W.2d policy shall ever be health insurance or misrepresenta- Co., v. Life of 12. Penn Mutual Ins. Williams defeated because 1, 1928, application Cir., 3. of ma- F.2d which is 5 27 in the 180 recognized day day to honor de sured was as a substandard and adherence ought having cency not risk his coro- because a and It of faith. nary Indeed, destroyed by clear in I is proof not thrombosis 1948. be way. convincing. which think Tаk- rare case this fact cuts the other is It a and that, in undisputed mat en a connection with evi- justify as the the stoop misrepresented dence law, fact character has the of ter a man of to, greatly greatly material relied here. increased cheap the fraud ed to judge being assumed, the the for the substandard risk was error think that it We falsity as case, materiality its the in all of deliberate of decide. The so to representations by jury. starkly In a stand out. pects, should be decided short, it me case that when this seéms may trial, it that, another In order viewed, whole, piecemeal is as a jury for decision to a submitted be light undisputed of of facts reversed below is judgment the court case, including ap- the fact admitted case remanded. pellant’s brief that “made the insured remanded. Reversed and misrepresentations in his cerning (1) report his ex- failure Judge (dissent- HUTCHESON, Chief amination at Massachusetts Memorial ing). (2) Hospital, report an ex- failure to majority that agree fully with the physician I amination a within the insurance, in years” life questions a suit on that “on these prevail there defendant to for the
order defendant would be entitled to representation, be shown: necessity must structed verdict but fact, proving they (1) a material reference concerned matters knowledge intent falsity, and with risk, (2) matеrial to the were made with agree, too, under the deceive, to deceive. I controlling intent (3) re- law, normal- on.”, and case taxing credulity statutes lied far be- de- ly questions fact “to yond are these its utmost limits to or claim contend trying court termined that what was said and left unsaid was knowingly, deliberately, not done case.” the intent to deceive. show, howev- authorities As Texas normally so, this does er, this is while purpose will It serve no useful to set every case must insurance mean out the evidence. The facts which stark contrary, jury. theOn sent dominate this case conclu- force the Texas established law right judge sion that the district case, in the trial oth- trial directing verdict, including particu- are cases, uncontroverted issues er civil larly plaintiff’s proficiency skill are to a be submitted not to very doctor in the field which this subjects peremptory instruc- proper do, admitted condition of his had to are 41B, pp. 489- Sec. Tex.Jur. tions. 494; sufficiently opin- majority stated & Accident Life National Clark v. require I ion. Cases which think Co., Tex. 200 S.W.2d 145 Metropolitan view take are: Rhodes v. I Kuehler, Co. Life Ins. v. 820; Jefferson Cir., 183; Co., 5 172 Life Ins. F.2d Tex.Civ.App., S.W.2d 298 States, United Pence v. U.S. rule, it seems clear me Under 1510; 1080, 86 L.Ed. v. McDaniel S.Ct. light most favorable to taken Cir., 291; States, 5 196 F.2d United be concluded that it must plaintiff, Stratton, Cir., v. States United incontrovertibly, that is as F.2d law, re- establishes facts matter respectfully dissent. I *10 support verdict. instructed quired denied; Rehearing HUTCHESON, fact, of have overlooked I Judge, dissenting. much, that the in- Circuit opinion makes so