*1 the market value recovery in this was case awarded awarded machinery petitioner It was had sold. trade-in machinery. evi- There was in lieu return of the trade-in of a finding fair market supporting the trial court’s dence error to machinery $2100.00, and it not value of the return recovery respondent in lieu of award of $2094.00 Cancellation, machinery. on Recission and of the trade-in Black 1093, 690, 1560, 1570; 2, p. 695, p. sec. Can- Vol. sec. C.J.S. Instruments, 79d(l), p. cellation of sec. 1093. judgment Appeals of the Court of Civil is affirmed.
Opinion 6, delivered November 1957. concurring.
Mr. Justice Smith agree prepared many I am analysis with opinion. agree cases majority However, referred in the I the result reached this case for the reason that the record shows transaction, including that the entire the statements made (owner) Myers Mr. Kincaid (agent), and Mr. was one of continuing fraud my opinion findings and in trial court are sufficient to show pro- fraud in the inducement or curement as aswell fraud in the execution of the contract. Under case, the record in this going I see no reason for into the record of the cases such as the dijerent Patton case which involved facts pleadings. and different It proper judgment affirm the of Court Civil
Appeals.
Opinion delivered November 1957.
Rehearing overruled December 1957. Company Texas Prudential Insurance v. Oral Vera Dillard No. A-6211. Decided November 1957. Rehearing overruled December 1957. (307 242.) S.W. 2d Series *2 Pinkney Simmons, Thompson, Knight, Wright Grissom & Jr., petitioner. Kendall, for David M. holding fact Appeals erred of Civil The Court insured; condition of health of as to the existed holding that insured its defense insurer had waived also in there was evidence was not in health because Tattum, 152 2d v. S.W. Ass’n of Brownwood waiver. Morris 470; 871; Hughes National v. Am. Nat. Ins. S.W. Travis, Life 2d 867. Ins. Co.
Joseph Dallas, Geary, Barron, Jr., Jr. and S. W. W. both respondent. error, respondent petitioner’s points of In answer to cites *3 Co., Coxson v. Atlantic 943; Ins. 142 Texas Life 347; Life Vann v. National & Acc. Ins. S.W. 2d 720, sec. C.J.S. 725a. opinion
Mr. Justice Garwood delivered the of the Court. application The for writ of error in this case and the answer present questions, (1) thereto two as follows: As a matter of insured, law on the evidence was the deceased Clarence Gur- Dillard, thery good meaning not in health within the of the life policy insurance policy in suit the when was delivered to him on 15th, or April 1953, by petitioner, about Texas Prudential In- Company? (2) not, surance petitioner if he was has the insurer “good provision right waived health” or its to invoke it in this good suit? hold that the We insured in was not health and that there was no waiver. applied
The insured for policy on a “nonmedical” basis 30th, 1953, on March application specifying a death benefit $2,032.00 mother, in respondent favor his Oral Vera Dillard. As fully hereinafter more stated in connection with question above, (2) application form, page, or on which application, insured his made inquiry contained no as to epilepsy, whether he had and he was not by asked question that petitioner’s soliciting agent, nor was a medical examination required. policy duly The applied was issued as for with an April effective date of 1953. The insured January died on liability 1954. Petitioner denied on policy and this suit was instituted thereon. policy provision
The reads: shall the in force nor policy shall not be deemed to “This manually re- Company until hereunder this be liable good during and while by lifetime the Insured ceived for premium called for the first made full settlement (cid:127) upon delivery it shall page policy; this then on the first policy.” as of date of the become effective the effective particular provision was made defense on this based single jury, subject special as follows: issue to matter of you on preponderance that “Do find from a evidence good Guthery health?” April was in Dillard 1953 Clarence findings jury (Other “Yes.” confirmed answered health, good actually representations insured had made health, physicians not of bad and of consulted absence application. preceding years, in his within five as set forth by representations It was also found were these believed soliciting agent However, application. further the findings who took the representations
were to the effect that such
either
were
false,
material,
insurer,
petiitoner
not
not
not relied on
intentionally
Apparently
not
findings
made.
a result of these latter
petitioner
stage rely
insurer
not
on the
does
as
at this
misrepresentations
such,
defense
breach
stipulation
the above-mentioned
it-
self.) Judgment
respondent
entered
on the
verdict
Appeals
and the Court of Civil
affirmed.
where between five weighed six tall, inches and six feet approximately sixty-five one hundred and pounds, strongly appearance being good built and had the Moreover, in health. time, at that there is no evidence of nonapparent internal or abnormality except or illness as hereinafter stated. At least as however, early age as years, at the of 16 he had suffered type a a commonly convulsive seizure of epi- associated with lepsy. year About a and a half later (1946) joined he Army, within less than two months given thereafter was a medical discharge “psychoneurosis, for conversion August reaction.” In October, 1947, he consulted a Dr. Rounsaville, whose testi- prescribed for physician mony discussed. is hereinafter This generally prescribed sodium, drug a kind of him dilantan sedative suppress convulsions. only epileptics, to While for which tends thereafter, regularly more or less the insured took medicine this entered, spent approximately in the latter half of he ill- in, Hospital, where his Administration month Veteran’s diagnosed additional epilepsy and suffered ness was as where he convulsive seizures. evidently
Except hospital he for his time out in although employers, regularly, worked more or less for different discharge Army from the time his medical from the in 1946 May, 1953, very shortly policy until he took or after out months, suit. At that time he ceased two work some resum- ing employment July, 1953, again only stop to some four — November, unemployed, later months still 1953. While 17th, 1954, January began to suffer series continuous seizures, January convulsive culminated in death on Although give all, 20th. specific the record does not dates of many, seizures, even clearly of his nor connect them with his periodical suspensions changes employment, fair that, inference is between 1944 and the onset of his final series January, 1954, average convulsions he suffered an of more year, than prior per including one seizure at least year one each taking to out the in suit in 1953. principal testifying witnesses on behalf respon- of the beneficiary dent generally healthy appearance and activity of the insured respondent herself, were the daugh- her (sister ter insured) young lady, who, Caldwell, Mrs. prior marriage, high to her was a school classmate of the sister and friend of the latter and the insured. The first two witnesses lived in the house up same with the insured including time the was taken However, out. appears Mrs. Caldwell largely have known him an incident acquaintance to her sister, with his and seems to have seen little of him after around apparently which time she married Mr. Caldwell. All of these unequivocally witnesses testified respon- fact of the prior dent’s seizures to the time he took policy, out the portion and the their testimony pointing toward obviously the insured qualified accordingly. *5 sample testimony
A of the respondent is: “Q. Now, your knowledge, you do know whether Clar- Epilepsy? ence had Now, know. Well, they it. I don’t is what called “A. * * * I know. as I is all
As far know up “Q. got Army from the time he out of From death, jury approximately how tell this until the time of his attacks, all. such if he them at he would have often high go year; Well, he almost a sometimes “A. would * * * go in six would one months and sometimes then he have having months one. six without
“Q. except Now, of time in interval which he actually having attack, any an he did ever evidence other you? symptom of ill-health No, sir,
“A. not ever.” respondent also confirmed that insured went to Hospital in 1948.
Veteran’s Samples of the of the sister are: “Q. you anything concerning Did ever observe else Clar- periodic might than ence’s condition other these attacks that he have? No,
“A. sir. “Q. frequency, all, Tell this if attacks might have had. Clarence
“A. You mean how often?
“Q. Yes. year
“A. I time he know one went or so without one.
[*****] “Q. He did seizures? seizures, yes.
“A. He had
“Q. taking dilantin all Was the time? *6 guess taking it “A. I that what He some medicine. they called it. I think that what was.
“Q. dilantin Did he ever not take the or medicine? “A. Yes.
“Q. On what occasions did he not? mean, taking
“A. stop He would it was cured. to see if he I enough long cured, he would think he had taken to be and he it stop would to see if he was cured.
“Q. taking stopped it, happened? he then When what long spell.” “A. After so a time he would have typical sister also testified to the details of a seizure insured, describing them as She convulsive character. danger strangling stated that she considered him to be in brothers, get present, spoon such times and that his if “would something tongue keep biting and hold his him it.” She occurring also referred to seizures while the was seated deceased standing, stating and while that in the latter instance and, upon regaining he would fall down consciousness there- after, complain “would of headaches and he would if he know although had hurt himself.” Mrs. obviously Caldwell not in the company nearly of the insured as often as were his mother and sister, witnessing admitted seizures “two or three” healthy occasions. The as appearance other witnesses to the and insured, wit, conduct of the agent, Mr. Caldwell the insurance Killough, clearly Leonard position to, G. were to, purport and did not contradict the fact seizures, nor any purport did ally to do so or witness to minimize their dramatic- Nor, noted, serious character. unless as above did wit- purport ness to minimize occurring the number the seizures taking prior subsequent policy. out of the Dr. Rounsaville above mentioned was the medical wit- at the trial. He probably ness testified the insured epi- during lepsy as even such times his seizures suppressed were by types medicine. He also testified that there are three epi- respective by lepsy types their characterized of seizure and grand known, respectively, (French mal for “greatly bad”) bad”) (French psychomotor petit for “little mal seizures; grand by mal are manifested a stiffening seizures of sleep by convulsions, followed muscles, unconsciousness the insured of the seizures (precisely the characteristics ; beneficiary) respondent family for the witnesses described experienced by usually children are petit mal seizures *7 staring day-dreaming by period brief are manifested convulsions; psychomotor are of attacks space, into temporary by a magnitude manifested and are smaller much doing. is of what victim unawareness stated, following Dr. Rounsaville his consultation with As less August October, took the assured more prescribed, then regularly which the doctor the dilantin sodium suspended sister, undoubtedly that, by except his he as described hope evidently of de- taking in the vain time to time it from day fatal tecting his progress a cure. which toward On began, sent his to have the insured brother series of seizures shortly after refilled, prescription and a seizure followed capsule taking the medicine thus obtained. first capsules, continued to take the same insured continued days rapid later. succession until his death three seizures taken, particular thus medicine As the character of respondent only testimony and Dr. Rounsaville. was that of thought capsules were smaller than the former said she them Dr. Rounsa- taken and showed some of ones theretofore doctor, turn, the insured. The testi- death of ville after the vaguely as follows: fied rather * * *
“Q. you any of the Did she show Yes, sir, (Interrupting) she did. “A.
“Q. you know what those were? Do they Well, say. opinion, categorically my I “A. couldn’t sodium, like delvinal sodium instead of dilantin looked more Sharpe is a sedative made & Dohme. “Q. delvinal sodium have effect on beneficial Would suffering person epileptic seizures? strong enough It if it were to curtail
“A. could the seizures. It’s a sedative.”
Dr. also testified that he Rounsaville knew of no cure for stated, that, epilepsy probably as before suppressed by sodium. dilantin epilepsy his seizures were while effect including testimony, quoted, is to last above His epi- sodium, generally prescribed that dilantin while sedative, is, something relieve calculated to leptics, is it. also testified of a rathern than to cure He the effects disease as follows:
“Q. taken, long man And as this Dilantin Sodium seizures, epileptic will he? won’t have stays on it. adequate
“A. If the dose and he “Q. right. And he can lead his normal life and do That’s long anything anybody drug, else can do as takes that can he not? long
“A. As as his seizures are under control. “Q. Yes, And can sir. he work and he can have a normal every respect, life in right? isn’t that Ye.s,
“A. sir. “Q. long And as Dilantin, as he takes that he is in sound purposes? health for all Yes,
“A. sir.” There is issued, no doubt that at the time the was the insured was afflicted with a produced disease that and had been producing, the same sort of seizures or convulsions which from he died some nine months later. We further conclude that minds of reasonable men could not differ from the the the view that epilepsy, disease in type. gen and of the worst erally appearance “normal” and behavior of the insured and general even robust character physique of his lose all their of significance good against health, evidence of health or bad clear, is, once it that, is made time, as it at the critical he ac tually had the disease and its in worst form. Proof of the outward appearance good may health well make the issue one of fact most, many, cases, in even obviously but every not in one. An may appear quite employer, individual robust family to his friends and he himself conscious of yet no serious ailment and beyond turn out dangerous to have had doubt disease that no say insurer would care to risk. To ap- that such necessarily say good parent is not health is admissible regardless in the it a fact of all creates issue other evidence case. being scope so, falls within the think the we case
This Wright Life v. Federal Ins. Texas rule stated Comm. Lawson, App., and American National Ins. Co. v. 248 S.W. taking- insured, that, time supra, where the at the to the effect “good stipulation as that policy with a health” out a before illness, suffering us, kind of from serious continues death, eventually the condition of causes undoubtedly having epilepsy The insured fulfilled. not type he took out in 1953 and un- most serious when dying thereafter, doubtedly it nine months he was from some good time, health at former of law not a matter contrary finding should have been disre- garded. argument contrary can made to the serious above-quoted on statement Dr.
is that Rounsaville based long as the that if and so insured should to the effect take dilan- proper dosages proper times and in tin sodium health. The statement not in sound one that would be health, good been, if it and even had it not insured was would supported the face the verdict of the undoubted fact pretend question, (which doctor did fact con- epilepsy died firmed) that soon it. To legal strength of these undoubted facts result alter opinion that the insured inwas not- of a doctor’s *9 withstanding accept legal facts would be doctor’s good rather than the health court’s. This we could definition testimony given by might, kind of Dr. Rounsaville not do. apt example, situations —for indeed, for certain one in which question as to ultimately a whether the illness which there were yet, at the time the delivered, was proved fatal stage Evidently be classed as not to serious. such a there is actually having persons yet prop- an in which disease are area time, erly although have at the held to been grow for lack of medical they worse attention later and die. persuade against no decisions which cited to are us We foregoing views. Poignee Hancock Mut. Life v. John Ins. S.W. 2d an judge decision of
677, (a appellate two-to-one intermediate Missouri, Supreme Court of that court state de- another dined to review “on the merits” for lack of conflict with Mut. Ins. decision. State ex rel John Hancock Life Co. v. Hughes, 348 Mo. the insured diabetes years receipt diabetes, prior a few and died of but clearly was not re- it established that he had diabetes when he policy. question ceived the said that the latter court important supremely question” “the in the case and held it to jury, being be for the proof there that diabetes once exist- ing necessarily persist proof would conclusively nor other show- ing the insured to still policy. had it when he received the There was no contention might, the disease on the evidence, good be consistent with a state of reason of availability keep abeyance. medicine would it in Sovereign Camp Derrick, W. O. App., v. Texas W. Civ. refused, S.W. 2d wr. er. essentially similar to the Poignee case, supra, that, admittedly while the insured died slightly cancer over two months after the time when the required insurance contract good health, him to inbe neverthe- less, question there was a serious as to whether the cancer had actually existed as a disease at the critical time. The insured had a body mole on his evidently long which had existed for a any time without ill upon him, effects whatever but which dur- ing the period, began relevant abnormality by to evidence bleed- ing. upheld The court jury finding good health, clearly n onthe single theory that the erstwhile innocuous mole was not n conclusivelyshown to have been a cancer at all at the critical language time. opinion Relevant from the in this connection is quoted in the definitely footnote.1 The that, case does not hold admitting time, the insured to have had cancer at the critical yet there was fact as to his health because of testimony that the kept disease could have been retarded or abeyance by medical means. If there is inference to be drawn connection, from the case in this latter it is that actual general 1“We do not understand that a disease ailment which affects the n soundness and healthfulness of system seriously human to embrace an ‘affection though only by surgical treatment, even readily curable medical or but nevertheless necessarily tending life, remediable and so not to shorten it become before has developed bearing praesenti, upon so far general as to have some health.’ Cady Fidelity Casualty Co., 967, 971, (N.S.) & 134 Wis. 113 N.W. 17 L.R.A. bodily infirmity 260. And such affection would not constitute of a substantial *10 nature, materially necessarily insurer, nor risk of increase the nor could very It be said such an affection constituted bad health. Hence the time of inception beginning ravages or the the terrible disease with which of James of died, important TS.Derrick is all in this case as there is no room for doubt but (64 what he died as a direct result of metastases from a melano sarcoma.” 2d 982, 983; emphasis supplied.) existence of avoided the cancer at the critical time would have liability of the insurer. Fidelity Cady
The court the Derrick case cited & Cas- ualty Y., 967, (U.S.) Co. of N. 17 L.R.A. Wis. N.W. (1907), warranty he the insured that involved of good was in health local or consti- “and not afflicted with Actually, by jumping tutional fall- disease.” the insured died ing hospital down an elevator shaft in in which con- he was undergoing “stricture;” surgery fined after on account of “good provision by health” was nevertheless invoked insurer, strong undoubtedly and there evidence that question, ailment in fully appear, the nature of which does not upon delivery existed policy. of the actual decision merely upheld by instruction trial court to the effect organic disease,” “an stricture” was a “local but would not “ * * * developed be unless the affection was so far bearing general become upon so serious as to have some health.” implications holding Even the broader this amount existing to more than delivery disease time of policy serious, distinguished of the trivial, must of a “good nature in provision order for the be breached. The obviously case point does not cover the whether the actual admittedly existence of an otherwise serious may disease good merely be consistent with a state of because the kept abeyance disease could been medi- cine, although actually it was not. Co., Coxson v. Atlanta Life Ins. 142 Texas 2d 179 S.W. only likewise involved of whether the disease (pulmonary tuberculosis) actually existed, or existed in serious form, delivery at the time having policy, the insured gone hospital to the active tuberculosis some two thereafter, months died therefrom about fourteen months later. was, indeed, The evidence almost conclusive to the effect that the delivery, disease was prior “active” to the jury finding and a strength upheld largely health” was on the general lay evidence from witnesses as to the nor- appearance mal and activities of the insured before he went to hospitál. Nevertheless, point whether, involved was not assuming the insured to have had “active” tuberculosis at the time, might critical yet good be considered in health because ready availability of effective treatment disease. Vann v. National Life Accident & Insurance 24 S.W. sustained a verdict of health in a case where the *11 delivery undoubtedly a month insured cancer before organ some same policy, undoubtedly cancer of the of the had a undoubtedly following delivery, died the and five months organ thereafter. months from cancer of the same During some four delivery she was early part the of the month the given treatment, medical and there was radium improvement in the the brief effect that she showed considerable period policy de- the end of the treatments and the between physician livery, being apparent signs her the cancer testimony from about that time. There was some medical also which it under could have been inferred that these circumstances might during the the cancer never have recurred the balance insured, although physician lifetime of same also testi- period fied that for a “we do not consider them sound health years.” lay testimony of five There was benefi- also ciary’s daughter question husband and that at the time in appeared and acted normal in that as if in health. Even case, however, point appears whether, issue been considering disease, particular the nature of the the insured ac- tually or, words, question had it at the time in in other whether might regarded not disease have been as cured. applicable same distinction is to American Home Life Company Cir., Zuniga, Insurance 228 Fed. 2d was a purported Derrick, cancer case and to follow the Coxson cases, supra. Vann
As to the further petitioner of whether the insurer waived, has estopped assert, or is provision policy, requesting any the burden of necessary issues upon respondent. show, The record does not and she does assert, requested and, being submitted, she none she point, has waived the estoppel unless waiver or is established law, as a argues matter respondent they were. Rule are, opinion, Texas R. Civ. Proc. The facts our against respondent’s contention. signed by way ap- declaration which the insured of an plication all page document, a four-page printed or set of documents, regular by consisting petitioner, use of a very large sheet doubled over so as to make in effect two smaller sheets pages. or four
Page separate containing 1 was by in effect a form itself questions being by applicant, numerous to be answered these spaces (at page) immediately the bottom of followed soliciting agent, signatures applicant, the date large representatives. top page in other insurer At the type following were the words: *12 4 APPLICATION, 1 PAGE
“FOR USE NOTE ON OF SEE THE TEXAS PRUDEN- NON-MEDICAL “APPLICATION TO TIAL INSURANCE COMPANY
“Galveston, Texas.” form, for, page, and cer- This or called and made the signature, statements, including required tified all the his the military following: any (a) corresponding blank to discharges received, medical dis- the declaration “Stomach day, goes every order. never Dr. Does not him.” Works bother (b) inquiry applicant as to whether had “consulted by any physician or physicians any been treated or for cause during past answered, years” (c) whatever To five “No.” inquiries concerning past illness, ap- the answer was plicant any had never disease did not at of and the time * * * application “any physical mental or or defects any express inquiries particu- disease of kind.” The about applicant lar family any ailments as were to whether or of insanity. had ever suffered from tuberculosis These negative, were question answered in as was the further of applicant whether the had ever been refused life insurance up.” “rated
Page (reverse 2 1) together side page of and constitute separate form, beginning effect and top second of at the page title, 2 with the “PART II. IN- TEXAS PRUDENTIAL SURANCE COMPANY OF APPLICATION. DECLARATION APPLICANT IN LIEU OF Fol- MEDICAL EXAMINATION.” lowing this page title and much extended form than more 1, is a inquiries set of detailed of a medical nature and other- wise, including applicant whether the had ever “affected been any with” one fifty specific or more of some ail- or more listed ments, including “epilepsy.” form, effect, duplicates This in- quiries page regard insanity tuberculosis, contained on 1 with sundry matters, and inquiries page other but not the ta 1 as age various other matters such applicant, address and beneficiary, name of the particular character of the insur- applied ance (as for. At the end of this “Part II” to the end pg. 1) spaces signature are application found for date in, nor does pages filled applicant. part of 2 and was No signature appear thereon. pages 2-3 page There is no reference in the 1 form to form, respect express reference in latter former. REPORT,” top page bears title “AGENT’S following applicant’s appear- questions include one as to indicating strong
ance This health and constitution.” “Yes,” latter questions and the answered other soliciting agent signing answered, were also bottom signature. particular place provided this form the for his page 4, separated agent’s signature At the bottom from the appear “notes,” including 1,” several the “Note No. referred page copied in the title on 1 above This mentioned. note is be- application, stated, $2,032.00 low.2 The called in- as before *13 petitioner surance. At the trial an official of the insurer testi- that, fied “If ordinary policy the amount of of an is insurance $3,100.00,” only less pages than the forms on and 4 are to out, whereas, $3,100.00 be filled for amounts between and $5,000.00 pages used, the on form and 3 must also while be $5,000.00 regular for amounts over medical examination is required. This contradicted, in nowise and finds was mentioned, although confirmation in lat- the “Note 1” above the altogether ter is not clear to the casual reader in and of itself. agent soliciting application who took dis the did not play very testify memory, accurate or consistent but did without contradition that did not ask whether the insured epilepsy convulsions, had effect, had or had no to this information accepted and as true the in above-mentioned answers of the page regard Army sured reflected on the 1 form with to the discharge, medical any physical absence of de disease or fects matter of not physicians. (The consulted jury, stated, as actually before found that the insured all made statements, these petitioner agents and that insurer and its Complete pages Age 2“Note No. 1. Age 1 and 4 for 0 to attained for up $2,500.00; Age through Age 45, amounts to from attained Insurance exceeding $3,100.00, only. up amounts not and 1 and 4 Report Standard Risks For all other to cases including $5,000.00, application completed. only pages the entire must be When completed, Inspection necessary. writing Agent’s are to be page completed Regardless on 4 must be in all cases. of the amount of for, applied applicant female, page Insurance if the is a PART II on 3 must be completed. Payor Payor Age “When Benefits are desired is not over Insurance complete Payor application this form on in addition to on child.” petitioner insurer or them.) proof that the There is no believed agents any suspect, the insured knew, its or had reason to epilepsy serious or other had suffered from ailment, or seizures inferred, respondent knowledge as the unless such be be, dis- his answer of “Stomach seems think it should discharge. inquiry service medical order” to the about his request connection, record this therefor, discloses no issue relevant, any negligence such as to should be believing, did, or in petitioner as it the insured stated what failing investigate the matter otherwise. App., Texas,
In Lee v. Mutual Protective Assoc. of Texas Civ. respon dism., 2d 47 dent, wr. of er. cited for S.W. “good application health” with answered the time,” part the words and the neverthe “In insurer bed dying policy, shortly less issued thereafter. The provision insurer’s policy of the defense based language: following rejected in was just that, “It is if the asso- certain under the decisions knowledge Lee, of the Mrs. time the ciation at the fact good health, (what her, certificate was delivered to not in construe thing) we the same health as such state of delivering time, required part her to be bed its act collecting thereon, knotuledge, such the dues against provision pleas renders said the certificate stop estoppel wavier a defense. need not unavailable as We inquire accurately whether defense be denominated sup- (47 ‘estoppel.’ 404; emphasis ‘waiver’ or an plied.) *14 point opinion,
At a in the further the court said: pass now to the “We more difficult of whether the findings distinguished court’s show association” the [as soliciting agent] knowledge from the “had when the certificate was delivered that Mrs. Lee in exist- was not health. The mind, depen- estoppel, ence of waiver or borne it must be in upon knowledge.” dent (47 the existence of such 405; emphasis supplied.) case, apply The rule thus stated does not to instant in the “knowledge” part insurer, there was no on the negligence any conceivably in which fact relevant issue of knowing any not was waived. do we know decision or Nor of “good restricting pro- rights health” under a of an insurer rule investigation ap- an it has the to cases which made vision or plicant’s apart from his own declarations cases expressly particular disease has asked him the which it about Actually requirement he died. we know from which anything applicant pre- his health as asked at all about “good provision. requisite to health” And enforcement of the only general except questions if the insurer chooses to ask diseases, thereby saying to one that it or two we know of no rule rights regards specifically waives its all diseases not asked about.
Thus the contention boils down to whether the claimed waiver necessarily follows from the fact mere insurer (pages 2-3) questions available both “Part II” form with (and epilepsy fifty diseases) about some more other or page electing short form on 1 and to use the latter. The logic contention, sound, of such a if would mean waiver “good provision regard health” virtually every dis- with to science, ease known to since most of included them are in “Part II” epilepsy. in addition Obviously any to not waiver would one, be a applicant evidently knowing consensual about parte “Part II.” As to ex petitioner, waiver the latter being obligation diseases, under no particular to ask about page being evidently complete form form in itself and containing any other, neither form reference to the an infer- ence of hardly intent to waive would follow without more evi- support dence to it. is, wit, Such other evidence as there “Note 1” proof simply the uncontradicted that “Part II” applications was not used in insurance, $3,100.00 for less than weaken, tends support, than rather the inference and cer- tainly keeps being it from established as matter of law. agree
We are also unable to theory additional estoppel alleged waiver or based on the petitioner conduct of the declining grounds the claim on policy provision other than the question. True, petitioner, brief letters of the on which respondent relies, speak misrep- did in terms resenting withholding or the facts in connection with his disease expressly and did not refer provision to the worst, policy. However, was, the omission a formalistic one, hardly mislead, of, calculated prejudice position respondent; finding proof and there is no in the record *15 indicate that only it did so. respon- decision cited for the point, dent on this Murphy, National Aid Life Ass’n Texas indeed, stand dism., may, of er. App., wr. 78 S.W. Civ. ground one a claim on declination of proposition that the for the later, ground asserting a distinct may estop insurer However, claimant. delay prejudicial has been where case, instant applicable the facts of find it we do not substantially are different. judgments holdings below require a reversal of the both Our nothing, respondent take judgment that and a rendition of developed fully the case not been unless we consider has cases insured. respect health of the See of the issue of Annotated Franki’s Vernon’s under notes to Rule collated latter connec in this Rules. we have some doubts Texas tion, While rather elaborate respondent’s we note that otherwise we should request a remand in the event contains no brief agree, do, issue position petitioner on the of the we respondent considers this assume that mentioned. From we according standpoint, fully developed the case from her and we ly judgments should reversed conclude that both below nothing. judgment respondent It is so rendered that take ordered. sitting. not
Associate Justice Greenhill Opinion delivered November 1957. Calvert, joined
Mr. Justice Justices Smith Walker, dissenting. respectfully
I dissent. recognize court judgments the trial majority that the only may if Appeals be reversed and the of Civil Court law, shows, that the insured us as a matter of record before in- meaning “good not health” within special issue April 15, In answer to surance on 1953. good health pertinent he was to our review the found submitting trial court jury the issue to the on that date. Health,’ “The term as follows: ‘Good defined perfection. It charge, absolute as used in this does not mean disease, grave, important or serious person has no means general seriously affects is free from ailment did not system.” Petitioner healthfulness soundness or complain it here. object the definition and does *16 and relatively bearing question is brief The evidence on The epileptic. simple, undisputed. was an The insured and is least inception at its epilepsy grand type was of mal and — Rounsa- early Dr. He first a doctor John 1944. consulted — pre- August Dr. Rounsaville ville scribed, and of 1947. October regularly took, so- dilantin and the thereafter insured dium, epileptic seiz- drug prevent a calculated and intended to taking ures, except stop medicine occasionaly he would He had days a was cured. for few to test himself to see if he average year. spite of his seizures on the of about once a affliction its continuous medication and need for and constant strongly appeared he was friends and relatives built and his good Except normal, healthy to be in health. a for He led life. regularly time jobs brief between he worked from intervals discharge November, army of his until 1953. from the in 1946 frequent is There change no evidence in the record that insured’s jobs unemployment November, or his January, the date of his death in due 1954 were to conditions health, fairly any may is nor there evidence from which we reasonably agent and draw such an inference. Even netitioner’s application who took the in- for the testified appeared sured good at that time “to be in and did “anything, not observe act or characteristic” about which would lead “to conclusion other than that he timony. was in non-expert health.” Such state tes- expert
The testimony medical in the record evidence found in of Dr. Rounsaville in the records of Hospital, by peti- a Veteran’s both offered evidence tioner.
The Hospital McKinney, insured entered the Veteran’s August 20, 1948, Texas on stayed period where he of twen- for ty-five days. general He underwent a physical examination on August report 20th. The official of that examination shows developed, following: physical “The examination reveals a well well appear acutely nourished white male who does not to be chronically ill. The KENT examination [mental test] within signs normal limits. There no scars or of trauma tongue. lungs The were clear and resonant. Examination of regular the heart enlargement, murmurs, revealed no rhythm, no BP abdomen, back, genitalia, Examination of the ex- 140/90. tremities, prostate rectum and were within normal limits. Neu- rological examination revealed the cranial nerves intact. to be deep superficial reflexes and physiological. reflexes were No negative.” Labo- Romberg
pathological reflexes demonstrable. urine, cells in abnormality no ratory tests showed negative chest, globulin, fluid, a normal spinal no increase of negative the Kahn Wasserman results from both skull following pneu- Except two-day period syphilis. tests for during fever moencephalogram the insured was without hospital. majority opinion refers stay period epileptic in the seizures while fact that the insured had *17 to the hospital. why. clearly he was hospital report shows When The dis- hospital insured’s dilantin sodium was admitted to days three thereafter he had con- a few continued within dilantin sodium with placed back on vulsive seizures. He was discharge, his supplemental phenobarbital and the date of on therapy.” according report, controlled on this to the he was “well reference part testimony Dr. Rounasville with A of the drug immediately prior his death to the taken the insured tes- quoted majority opinion. did the witness is in the Not tify opinion capsules moré like devinal that in his “looked that devinal sodium sodium instead of dilantin sodium” and suffering epi- person “could” have effect on beneficial seizures,”1 strong enough leptic curtail the seizures it were “if prescribe sodium but he also testified that he did not devinal epilepsy. testimony of the witness on cross-examination respect suppressing epi- with leptic the effect dilantin sodium majority quoted in the
seizures and on health is also testimony opinion repeated and need here. That not be examination, and that the witness was not shaken re-direct given carelessly proper is it was not consideration without examination, testimony as follows: reflected in his on re-direct “Q. epilepsy, Doctor, you just testified that man taking dilantin, life; can lead a normal that correct?
“A. That is correct.” testimony unequivocal. of Dr. that an Rounsaville is It is epileptic long will not have seizures as takes dilantin he dosage, adequate sodium in so and that when his seizures are every suppressed controlled he can a normal life in respect purposes. and is in sound health for all If other mem- profession opinion bers of the medical have a different that appear testimony fact does not in this record. Dr. Rounsaville’s undisputed. 1Emphasis throughout opinion this writer’s indicated. unless otherwise determining record evidence there is in the whether is en respondent probative support jury of the verdict value arising from inferences titled to have considered all reasonable Biggers System, Texas proved. the facts Bus v. Continental Dr. Rounsa and cases there cited. From knowledge training experience ville’s medical affliction, jury reasonably infer that di the insured’s could dosage sup prescribed adequate lantin sodium had press epileptic been testimony seizures. From the the insured drug regularly except took the to test himself when he wished seizures, and that it was on occasions that reasonably taking could infer that he was dilantin sodium adequate did, fact, suppress doses and it his seizures. occurring any specific There is no direct seizure year immediately preceding within the policy effective date occurring and none of seizure the date between thereof and the date of the insured’s death. foregoing hold, law,
On record should we as a matter of meaning insured was not in health within the *18 policy? respectfully the ing I submit that we not. should In answer
the kept it should be in mind that not con we are cerned with good whether the insured inwas health at and im mediately preceding any his death or on other occasion when seizure; he was we are with concerned the state of his April 15, health on 1953. Vann v. National Life Acci & Co., dent Ins. App., Texas Com. 24 2d S.W. 347. “good comparative term health” is and Hines relative. City Co., v. Kansas App., 688, Life Ins. Texas Civ. 260 S.W. 690, dismissed; Moses, writ National Life & Accident Ins. Co. v. App., 289; Texas Insurance, Civ. 257 S.W. Couch on 885a. sec. good given by The test of by the trial court to and used deciding “good in the issue tracks the definition of given City Co., health” supra, Hines v. Kansas Life Ins. and approved tracks also that in National & Accident Ins. Life Co. Moses, supra, Joyce v. by as announced Insurance. on 257 S.W. paralells 291. It directly approved by definition this court Sovereign Camp Derrick, App., v. W.O.W. Texas Civ. 64 982, 983, refused, 2d “good writ S.W. in which the health” words are said to mean state of health “a free from disease or general ailment that affects the soundness healthfulness system seriously, is, that the insured afflicted be not bodily with infirmity nature, disease or of a substantial general health, materially the insured’s or which in- affects 36 same defini- by risk the insurer.” The creases to be assumed Co., approved Accident Ins.
tion v. Life & Vann National Surety 347, 349, App., 24 Southern Texas Com. S.W. 2d other Benton, App., are 280 551. There Co. Texas Com. S.W. language “good slightly different health” in which define cases 885a-, test Insurance, invariably —see sec. Couch precedent requires by the condition invoked courts a dis- holding afflicted with that the insured of “bad health” general infirmity soundness ease which “affects or “materially seriously,” in- system healthfulness insurer,” “a by or that has the risk creased to be assumed important “grave, tendency life,” direct shorten or that serious.” weight overwhelming evidence, it— indeed all of laboratory lay testimony physical and the examination hospital , general
tests at the Veterans shows that sound- — seriously system ness and healthfulness of the was not insured’s by lay testimony probative affected force, ailment. That has 544, Co., Texas 179 see Coxson v. Atlantic Life Ins. 943; Co., Ins. Texas S.W. 2d Vann v. National Life & Accident 347; Evidence, App., 24 Com. 2d Law of 2d Ed. Vol. S.W. Texas 2, 1427, p. sec. 271. support that, law, the
To their conclusion as a matter of health, majority give insured was in consideration bad legal has definitions of which reference above, been made to a statement but turn instead Court Corley Appeals of Civil in American Life Ins. National Co. v. approval 2d quoted which is in American S.W. Lawson, Ins. National Co. v. Texas believing as follows: faith in “His insured’s] [the he was sound health the time delivered *19 delivery recovery will not fact time authorize a if in at the policy suffering the from an of a ailment substantial ultimately nature which continued his caused death.” dealing only ques- both of those the cases courts were knowledge by tion of whether his condi- lack of the insured of provision tion avoid the effect of the would of the legal policy; purport lay in neither did the court down Wright majority definition or test also health. The cite App., v. Life in Federal Ins. Texas 248 S.W. Com. they opinion reject in that the test announced case. language accept if we used in the Lawson and Cor- Even ley test,, respectfully proper as a I submit Co. cases insupportable majority incorrect and is still conclusion “substantial,” as used (1) the word reasons: because for two wholly at given odds with test, meaning this case in in the given it; (2) under because meaning heretofore we have whether case the the evidence in this “suffering an ail- policy, was, on the effective date of question. reasons fact These a substantial nature” is a ment of separately. bewill discussed
(1) meaning “sub- I see no of the words can difference legal tests of stantial” and “serious” as used “good health,” definitions evidently majority since the neither do the unquali- interchangeably opinion. In our words are used in the approval opinion Appeals in fied of the of the Court Civil Sovereign Camp Derrick, we Texas 64 W.O.W. approved part opinion in which it said that general disease or ailment affects the soundness and which system seriously healthfulness of ‘af- does not embrace “an though only by surgical fection even curable medical or treat- ment, necessarily readily but nevertheless remediable and so not tending life, developed shorten it before has become so far ” bearing praesenti, upon as to general health,’ have some approved and we part also that further it which is said that such an infirmity “affection bodily would constitute a aof nature, substantial materially, necessarily nor nor increase insurer, risk of the nor could it be said an consti- affection tuted bad health.” haveWe thus said that diseases ailments regarded are not to they as serious or substantial if are readi- ly bearing remediable so as praesenti upon to have no general out, pointed health. As above record shows conclu- sively that gen- the insured’s affliction had had no effect on eral health when may became effective. If we sav that it is a knowledge matter of common those afflicted with epilepsy grand type subjected greater mal are to some than injury normal risk of or death the nature of the seizures affliction, accordingly manifest may that we take judicial fact, immediately notice of that arewe met with the medical testimony danger in this record that such added easily remediable and by simple could be eliminated ministra- tions sodium, of dilantin and that at all times material to this inquiry it was so eliminated.
(2) majority opinion lays some stress on the fact that some nine months after the effective date of the the in- during sured died seizures, series of inferably as the result *20 the factor wrong drug. addition to having in But of obtained recog- affliction, Lawson case an test of the death
of policy of that the effective date nizes the further factor opinion majority must have substantial. the affliction recognizes been only factor not the affliction is that death from an nothing more than early affliction is test. from an An death existing date of the effective evidence that affliction graphically illustrated This policy or serious. was substantial may policy for breach of by the that the insurer cancel fact me provision lives. Let the insured still while stage of pneumonia in the same A and illustrate: B each had peni- development policies A when were delivered. submitted injections within was restored to normal health cillin religious views, week, B, his refused to submit but because of testimony that thereto and died within week. There is medical danger pneumonia at the there was some of death of both from policies delivery injection penicillin time of but that improbable. proper dosages wholly would have rendered death good policies are filed cancel both for breach of Suits provisions. say was we B died his ailment Would because nature, law, as a when his was of substantial matter delivered, that find that A’s was not because could testimony recovery speedy the medical and his was evidence easily proper that it was remediable treatment? It seems Question good me that health would have to be resolved by the test same and that it both cases both would be question. fact
Although the insured in this case died from an affliction policy, question which he had on the effective date still remains whether at that was time the affliction such a seri- policy. ous or substantial character as to avoid the This is case, and, submit, question heart of the I is a true fact under majority evidence in it the case. The make short shrift of ground on the undoubtedly epilepsy that the insured "had type most policy.” serious when he out took Granted. meaningful statement is no more than one the insured had question acne serious its most serious still how form. The remains: answering epilepsy? It is in this and, the my mind, controlling. all-important Dr. Rounsaville becomes
On the effective date of the the insured was in general He health. no seizures. There is no evidence many he had preceding months none *21 His seizures any time of his death. until the had during thereafter suppressed and eliminated period critical had been testimony is taking by Rounsaville’s dilantin Dr. sodium. anything and lead his normal life do that one so situated “can respect,” every anybody do,” a life in “can have normal else can purposes.” health” and all “Sound and “is in sound health for Soverign Camp “good synonymous terms. W.O.W. health” are ; 982, 983, Derrick, App., refused 2d writ Texas Civ. 64 S.W. Insurance, Couch on sec. 885a. testimony majority seem to Dr. Rounsaville’s discard was, fact, purposes”
that insured in “in sound health for all theory province de that it invades the of this court to that, law, in reason validity clare he was not. I of the doubt ing lay may express is it well settled that even witnesses opinion an person’s toas the state of Coxson v. health. See Co., 544, 943, 945; Atlantic Life Ins. 142 Texas 2d S.W. 354-357, Expert Opinion Evidence, 231, 19 Texas Jur. and sec. and cited, Evidence, Ed., cases there and Texas Vol. Law 2d p. sec. may and cases there cited. But if we thus dispose of testimony Dr. Rounsaville’s that the insured was in health,” in cannot, basis, ignore “sound we on the his tes same timony insured, suppressed that the with his seizures and elim inated, could lead “normal life” and could “have a normal life every respect.” testimony Reasonable inferences from the are that epilepsy, eliminated, with seizures would have no serious or substantial effect on the health of the and that he would expectancy. jury have a normal life was not required to believe the draw the inferences mentioned, Coxson v. Atlantic Life Ins. 142 Texas 943, 945, right it do and so this court should not annul conclusion, supporting verdict on our without evidence, opinion expressed that was unsound or incorrect.
The true majority position (although basis of the it is not so stated opinion) they judicial is that have taken notice epilepsy, danger eliminated, with all abnormal to health seriously nevertheless substantially affects health and breaches provision. nothing There is in this record to show epilepsy grand that a type, victim of of the mal suppressed, seizures is in worse condition of health than is a victim either of epilepsy the milder forms of with seiz- suppressed. Through ures judicial device notice we thus narrow functioning the area for or trial judge health” cases well inside boundaries heretofore fixed courts, it on a evidence, do record in which all repels reached. The lay expert, the conclusion we
both or ail- a disease all cases in which result inevitable policy is delivered ment, nature, exists at the time whatever its appropriate first we will the insured’s death and contributes to only, right upon judicial notice say, based to ourselves adduced, contrary all because the evidence even danger to some added element of disease ailment introduced when the one it a serious or substantial life was therefore harmony court de- hardly with most was delivered. This *22 cisions. subject on which health is a
The effect that disease has on experience peculiarly to tes- doctors are fitted education pass tify judges without ill-fitted and one on which are to general testimony. courts will expert of is that aid rule Poignee Hancock judicial v. John not take notice thereof. 683, Co., 677, App., Mutual Life 2d writ Ins. Mo. 147 S.W. 250, 829, quashed, Mo. 2d of certiorari 348 155 S.W. pro- “a judicial that was court refused gressive, take diabetes notice Ins. Co. v. disease.” In Accident incurable General history, 992, Hayes, App., 990, no writ Texas Civ. 113 S.W. judicial heart take that disease court refused to notice Casualty paralysis “non-confining were illnesses.” In American 423, 2d Gueringer, App., 205 & Life 424, v. Texas S.W. Co. Civ. recognized history, details of that “the no writ the court not progress are sub- the nature and the disease of cancer of knowledge.” jects judicial of either common or In a series cases have refused the courts of Alabama judicial presence take notice that the of certain diseases breached good Independent policies. provision health of insurance See 466, 469, Butler, 501, Life Insurance v. Ala. 129 So. Co. 221 (“The kidney disease, pressure, [high diseases blood heart alleged pleaded pleas war- as a breach these disease] anty being as a matter of common knowl- [sound health] edge, risk, plea as de- such would increase the sustain the showing fendant had the with that afflicted burden of was alleged serious, diseases; as they were and such that general health”) ; Independent affected the soundness of Vann, 520, 93, (“while Life App. Ins. v. 130 Co. 24 Ala. 523 So. are, law, the courts have said certain as matter that diseases materially diseases which tend to shorten life and to increase risk, policies insurance, willing of life this court is not present to add to the list disease which is called ‘ulcer- ;”) Phillips, ated stomach’ Life v. 223 Louisiana State Ins. Co. 5, 841, (“This judicially Ala. 135 So. 842 does not know court
41 ; Metropolitan Ins. loss”) Life syphilis the risk of increases (Defense 525 Chambers, 146 226 Ala. So. Co. v. insured was provision “sound health” breach of liver, splenomegalia, suffering oedema “cirrhosis are lungs, syphilis.” court “There said: ascites or judicial types take knowl- of fatal maladies of which the courts being cancer, edge, material such tuberculosis or knowledge insurance; or as risk of the courts take no syphilis, cirrhosis of diseases such as to the several forms of liver, alleged pleas.”). or other ailments in which it was held or The Texas cases I examined assumed, law, particular as a disease matter of breached provisions tuberculosis, of a involve Lawson, American National Ins. Texas Co. 127 S.W. 294; Wright Co., App. 2d v. Federal Life Ins. Texas Com. Cancer, 325; Tatum, Morris S.W. Ass’n of Brownwood v. Texas 871; App., history; stage Civ. 152 S.W. 2d no writ advanced paresis adjudged where insured was a lunatic before the days delivered, delivered and after Phipps died it was App., v. American National Ins. Texas Civ. dismissed; pelvic Hughes cellulitis, writ v. American Na- *23 Co., 470, App., tional Ins. history, Texas 2d Civ. 146 S.W. no writ April, which treated in was delivered May on May 2nd and insured died on 17th. cases, In a of number other involving often referred as
holdings that certain diseases breached the condition as a mat- law, appellate ter of reality judgments courts in affirmed of trial courts which the issue was question treated as a fact and by “bad health” was found judge. or trial See cancer American Corley, National Ins. Co. v. App., Texas Civ. 598, history; 73 S.W. 2d no writ American Life Banker’s Ins. Pate, Co. tuberculosis, App., 587, v. Texas Civ. history; 161 2d S.W. no writ Surety Benton, Southern v. App., Co. Texas Com. 551; trouble, 280 S.W. heart Great National Life Ins. Co. v. Hulme, 539, 602; 134 Texas influenza, 136 2d S.W. Ofield v. Co., National Benefit App., Life Ins. Texas 271, Civ. 293 S.W. history; City writ Denton v. Co., Kansas Life Ins. Texas App., history; syphilis Civ. 231 S.W. no writ which in- operated, sured had been American Crylstal, National Ins. v.Co App., 262; Texas Civ. shown, nature S.W. American Jarrell, National Ins. Co. v. App., Texas Civ. 50 S.W. 2d history. no writ appears thus It that tuberculosis is the disease, disclosed assumed, on research, court has held by my which this provision “good notice, will breach the judicial of basis suggest respectfully I policy, as a matter of law. anof insurance drugs most reluctant day we should this of miracle diseases, particularly those with other to extend it to years Experience in recent person may yet a normal life. lead a diseases, many diseases which pneumonia and other with veneral us teach many the lives of of their victims should once claimed regarded of and treated one that. should be liberty parties to offer evidence are fact on which both particular disease or non-serious effect the serious right appellate courts to reverse and health, in the with great contrary finding is to the remand when verdict weight preponderance and to reverse evidence judg- support a is verdict or there no evidence render when questions are dealt with as other matter should be ment. This disposed judicial of on the dealt and should not be basis with notice. plead is held burden on the insurer to
We have prove provisions of an insurance breach policy. Trevino American National Ins. Texas judgment 659. Petitioner asks in this case absolutely (and majority it) have awarded on a record doing proof, many questions left devoid of such so has bearing on the vital issue unanswered. district Petitioner’s manager writing petitioner policies will “consider” testified epileptics. policies Are such of insurance on lives of written higher premium higher than rates? If at normal or normal than higher normal, expectancy how much ? the normal life What similarly compare epileptics situated? How does it non-epileptics? expectancy mortality life do ex- What greater insuring perience risk show? How much tables epileptics? To what extent is the risk lives of lessened *24 taking epilepsy regular of dilantin sodium? Is ever the di- secondary cause of death or rect and immediate is it con- tributing profession cause? Are there members of medical epilepsy belief seizures who áre eliminated is rather than and substantial a non-serious a serious and insub- so, why their testimony to life? If was stantial menace not of- questions These clamor for the trial? answer fered on proof; by taking judicial burden of party which insured was bad health because he notice^ that an only relieved insurer of epileptic have not its we burden judicially supplied answers which we cannot know but epileptic-insured impossible an it have made the same time his seriously affect not prove or ailment did the disease insurer. materially the risk of the increase Health on shows that in which evidence This case stage in the last the insured was effective date days, a fatal death followed a few illness from which case, weeks, relatively few the or even few months. this knowledge, judicial reject basis we of one doctor, although strongest possible terms; it is in the and once it, epilepsy reject done we must in the next all case of evidence of health even if there should be ten doctors testi- fying that the affliction had serious effect on the health of materially insured and would not affect normal life ex- pectancy. right through If we are in the conclusion we reach judicial undoubtedly petitioner notice then produced could have support conclusion, evidence to might and had it done it so well many have convinced the insurers have done in (see other supra) cases cases cited and thus have had its vic- tory stage at the initial proceeding. of this judgments I would affirm the of the courts below on the ground jury finding that the supported by pro- evidence of force, accordingly bative would not reach the waiver majority discussed in opinion. Opinion delivered November 1957.
Rehearing overruled December 1957. Independent State Texas v. Rubion, John F.
Executor and Trustee of the Estate Hansley, Nellie Deceased, Et Al
No. A-5998. Decided December 1957. Rehearing January overruled 1958. (308 4.) S.W. 2d Series