Reliable Life Insurance Co. v. Washington , 570 S.W.2d 24 ( 1978 )

ON MOTION FOR REHEARING

The Defendant’s defense of fraud was not discussed in the original Opinion as the jury, by its verdict, found against that defense.

The Plaintiff argues in his motion for rehearing that waiver of the good health provision of the first two policies discussed was established because no false representation was made by Ozell Washington to either of the two soliciting agents. The Plaintiff relies upon the jury answers to Special Issues Nos. 1 and 6. Issue No. 1 submitted the Defendant’s first defensive iscue of the defense of false representation having been made by Ozell Washington as to her good health to the agent Armstrong. Special Issue No. 6 was identical to Issue No. 1, except that it inquired as to such representation having been made to the agent Fred Jones. The jury answered both issues in the negative. These were issues on which the Defendant had the burden of proof to establish its defense of fraud. The negative answers of the jury to those issues do not aid the Plaintiff in his position that they established that Ozell Washington gave the true facts regarding her poor health to those two agents. The Plaintiff would have the burden of proof to establish that she told the agents the truth and a failure to find on the Defendant’s issues does not establish the Plaintiff’s defensive issues of waiver.

We have considered all of the matters presented by the Plaintiff in his motion for rehearing and they are overruled.