National Casualty Co. v. Hampton , 216 S.W.2d 614 ( 1948 )

Upon review of the record I conclude that the factual basis in support of plaintiff's judgment is fully as substantial as that presented in Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, and if a recovery on the policy was there sustainable, so should be the ruling here. In its own narration of facts, the majority opinion plainly demonstrates that the testimony adduced on behalf of plaintiff was ofprobative value; the majority, on the other hand, giving conclusive effect to opinions of expert witnesses in their interpretation of X-ray pictures. Surely, under the facts and circumstances of this case and express language of Judge Folley in the Coxson appeal, a conclusive effect cannot be attached to the testimony of these experts.

Neither was there any question about admissibility of the testimony on part of plaintiff that defendant's agent solicited the insurance on his own initiative and without plainiff's invitation. Final question in the application signed by Hampton reads: "Do you understand and agree that the right to recovery under any policy which may be issued upon the basis of this application shall be barred in the event that any of the above statements, made with actual intent to deceive or material either to the acceptance of the risk or to the hazard assumed by the Company, is false ?" (Emphasis mine) Defendant pled that plaintiff's answers to questions 8(a) and (b) of said aplication (concerning good health) were false as herein above quoted in majority opinion. The following issues, answered in the negative, formed a part of the court's charge without objection: (13) "Do you find from a preponderance of the evidence that such statement and answer by the plaintiff, to the effect that he was in a sound and healthy physical condition, was made by him with the actual intention of deceiving the defendant?" (15) "Do you find from a preponderance of the evidence that such statement and answer by the plaintiff, to the effect that he had never had and did not then have tuberculosis, was made by him with the actual intention of deceiving the defendant?"

Plaintiff herein having been charged with fraudulent conduct in connection with the instant application, he was clearly entitled to the benefit of all facts and circumstances attendant upon its execution. "Conversely a person charged with fraudulent dealing may prove the attending facts in order to show that the entire transaction was open and free from misrepresentation or from invalidating influences." 20 Tex.Jur., p. 160.

Furthermore, to the conversation between plaintiff and insurance solicitor, which the majority now rules as "prejudicial," defendant objected on the ground merely that the testimony was "immaterial and irrelevant." Such has been uniformly held to be a general objection and insufficient basis for complaint on appeal. Capitol Hotel Co. v. Rittenberry, Tex. Civ. App. 41 S.W.2d 697; Peerless Oil Gas Co. v. Teas,138 Tex. 301, 158 S.W.2d 758; Aetna Casualty Surety Co. v. Davis, Tex. Civ. App. 196 S.W.2d 35.

In my opinion, plaintiff's judgment should be affirmed.