Natl. Life Accident Ins. v. Moses , 257 S.W. 289 ( 1923 )

The proposition stated in appellant's brief present the two points in view that (1) the application made by the insured for the insurance contained untrue statements concerning her health, and (2) the insured was not in sound health at the time the policies were delivered.

The insured made the statement, as a representation for the company to act on, that she was "in good health." Undoubtedly the question related to a matter material to the risk of insurance. And the question of the falsity in fact of the answer is for the jury where the evidence does not conclusively show that such answer was untrue in fact. In this case the evidence on one side goes to show that the insured did have an attack of flu, but not of such character as to produce at the time serious impairment of vital organs. At the time of the application for and delivery of the policies the insured seemingly enjoyed such health and strength as to justify the reasonable belief that she was free from derangement or impairment of organic functions, and free from symptoms calculated to cause a reasonable apprehension of any such derangement. But after the time of delivery of the policies she developed tuberculosis, which quickly caused her death. The time when her vitality became so lowered as to cause tuberculosis to set in may have been before or may have been subsequent to the time of insurance. But such time is not so conclusively shown by the evidence as to authorize the court, as a matter of law, to decide. The medical proof is not conclusive, but only indicates, that the lowered vitality existed and the tuberculosis set in in January or February. The term "good health," as stated in 3 Joyce on Insurance, § 2004 —

"when used in a policy of life insurance, means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. A mere temporary indisposition which does not tend to weaken or undermine the constitution at the time of effecting insurance does not render a policy void."

The term "good health" is comparative, and does not mean absolute perfection. Consequently the evidence, as decided in the companion case of Tennessee Mitchell (Tex.Civ.App.) 256 S.W. 291, does not satisfactorily negative the answer made by the insured so as to justify saying so as a matter of law.

The court properly and sufficiently submitted the issues to the jury. The question of fact was: Was the insured in good health at the time of the application and at the time of the delivery of the policies? If the jury had answered that she was not, then the court was required to give the legal effect to the fact that the policy was avoided for untrue or false representations. There was therefore no error in refusing the special charges.

The judgment is affirmed.