Texas Prudential Insurance Company v. Dillard

Mr. Justice Calvert,

joined by Justices Smith and Walker, dissenting.

I respectfully dissent.

The majority recognize that the judgments of the trial court and the Court of Civil Appeals may be reversed only if the record before us shows, as a matter of law, that the insured was not in “good health” within the meaning of the policy of insurance on April 15, 1953. In answer to the only special issue pertinent to our review the jury found he was in good health on that date. In submitting the issue to the jury the trial court defined “good health” as follows: “The term ‘Good Health,’ as used in this charge, does not mean absolute perfection. It means that a person has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness or healthfulness of the system.” Petitioner did not object to the definition and does not complain of it here.

*33 The evidence bearing on the question is relatively brief and simple, and is undisputed. The insured was an epileptic. The epilepsy was of the grand mal type and had its inception at least as early as 1944. He first consulted a doctor — Dr. John Rounsaville — in August and October of 1947. Dr. Rounsaville prescribed, and the insured thereafter regularly took, dilantin sodium, a drug calculated and intended to prevent epileptic seizures, except that occasionaly he would stop taking the medicine for a few days to test himself to see if he was cured. He had seizures on the average of about once a year. In spite of his affliction and its need for constant and continuous medication he was strongly built and appeared to his friends and relatives to be in good health. He led a normal, healthy life. Except for brief intervals between jobs he worked regularly from the time of his discharge from the army in 1946 until November, 1953. There is no evidence in the record that the insured’s frequent change of jobs or his unemployment from November, 1953 to the date of his death in January, 1954 were due to conditions of health, nor is there any evidence from which we may fairly and reasonably draw such an inference. Even netitioner’s agent who took the application for the policy testified that the insured appeared at that time “to be in good health” and that he did not observe “anything, act or characteristic” about the insured which would lead “to any conclusion other than that he was in good health.” Such is the state of the non-expert testimony.

The medical or expert testimony and evidence in the record is found only in the testimony of Dr. Rounsaville and in the records of a Veteran’s Hospital, both offered in evidence by petitioner.

The insured entered the Veteran’s Hospital in McKinney, Texas on August 20, 1948, where he stayed for a period of twenty-five days. He underwent a general physical examination on August 20th. The official report of that examination shows the following: “The physical examination reveals a well developed, well nourished white male who does not appear to be acutely or chronically ill. The KENT examination [mental test] was within normal limits. There was no scars or signs of trauma on the tongue. The lungs were clear and resonant. Examination of the heart revealed no enlargement, no murmurs, regular rhythm, BP 140/90. Examination of the abdomen, genitalia, back, extremities, rectum and prostate were within normal limits. Neurological examination revealed the cranial nerves to be intact. The deep reflexes and superficial reflexes were physiological. No *34 pathological reflexes demonstrable. Romberg negative.” Laboratory tests showed no abnormality of the urine, no cells in the spinal fluid, no increase of globulin, a normal chest, a negative skull and negative results from both the Kahn and Wasserman tests for syphilis. Except for a two-day period following a pneumoencephalogram the insured was without fever during the period of his stay in the hospital. The majority opinion refers to the fact that the insured had epileptic seizures while in the hospital. The hospital report clearly shows why. When he was admitted to the hospital the insured’s dilantin sodium was discontinued and within a few days thereafter he had three convulsive seizures. He was placed back on dilantin sodium with supplemental phenobarbital and on the date of his discharge, according to the report, he was “well controlled on this therapy.”

A part of the testimony of Dr. Rounasville with reference to the drug taken by the insured immediately prior to his death is quoted in the majority opinion. Not only did the witness testify that in his opinion the capsules “looked moré like devinal sodium instead of dilantin sodium” and that devinal sodium “could” have a beneficial effect on a person suffering from epileptic seizures “if it were strong enough to curtail the seizures,” 1 but he also testified that he did not prescribe devinal sodium for epilepsy. The testimony of the witness on cross-examination with respect to the effect of dilantin sodium in suppressing epileptic seizures and on health is also quoted in the majority opinion and need not be repeated here. That the testimony of the witness was not shaken on re-direct examination, and that it was not given carelessly or without proper consideration is reflected in his testimony on re-direct examination, as follows:

“Q. Doctor, you just testified that a man with epilepsy, taking dilantin, can lead a normal life; is that correct?

“A. That is correct.”

The testimony of Dr. Rounsaville is unequivocal. It is that an epileptic will not have seizures as long as he takes dilantin sodium in adequate dosage, and that when his seizures are so controlled and suppressed he can have a normal life in every respect and is in sound health for all purposes. If other members of the medical profession have a different opinion that fact does not appear in this record. Dr. Rounsaville’s testimony is undisputed.

*35 In determining whether there is in the record evidence of probative value in support of the jury verdict respondent is entitled to have considered all reasonable inferences arising from the facts proved. Biggers v. Continental Bus System, 157 Texas 351 , 303 S.W. 2d 359 , and cases there cited. From Dr. Rounsaville’s medical training and experience and his knowledge of the insured’s affliction, the jury could reasonably infer that dilantin sodium had been prescribed in adequate dosage to suppress epileptic seizures. From the testimony that the insured took the drug regularly except when he wished to test himself and that it was on such occasions that he had seizures, the jury could reasonably infer that he was taking the dilantin sodium in adequate doses and that it did, in fact, suppress his seizures. There is no direct testimony of any specific seizure occurring within the year immediately preceding the effective date of the policy and none of any seizure occurring between the date thereof and the date of the insured’s death.

On the foregoing record should we hold, as a matter of law, that the insured was not in good health within the meaning of the policy? I respectfully submit that we should not. In answering the question it should be kept in mind that we are not concerned with whether the insured was in good health at and immediately preceding his death or on any other occasion when he was having a seizure; we are only concerned with the state of his health on April 15, 1953. Vann v. National Life & Accident Ins. Co., Texas Com. App., 24 S.W. 2d 347 .

The term “good health” is comparative and relative. Hines v. Kansas City Life Ins. Co., Texas Civ. App., 260 S.W. 688, 690 , writ dismissed; National Life & Accident Ins. Co. v. Moses, Texas Civ. App., 257 S.W. 289 ; Couch on Insurance, sec. 885a. The test of good health given by the trial court to and used by the jury in deciding the issue tracks the definition of “good health” given in Hines v. Kansas City Life Ins. Co., supra, and tracks also that approved in National Life & Accident Ins. Co. v. Moses, supra, as announced by Joyce on Insurance. 257 S.W. 291 . It paralells the definition directly approved by this court in Sovereign Camp W.O.W. v. Derrick, Texas Civ. App., 64 S.W. 2d 982, 983 , writ refused, in which the words “good health” are said to mean “a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, that is, that the insured be not afflicted with a disease or bodily infirmity of a substantial nature, which affects the insured’s general health, or which materially in *36 creases the risk to be assumed by the insurer.” The same definition is approved in Vann v. National Life & Accident Ins. Co., Texas Com. App., 24 S.W. 2d 347, 349 , and in Southern Surety Co. v. Benton, Texas Com. App., 280 S.W. 551 . There are other cases which define “good health” in slightly different language —see Couch on Insurance, sec. 885a-, but invariably the test invoked by the courts requires as a condition precedent to a holding of “bad health” that the insured be afflicted with a disease or infirmity which “affects the general soundness and healthfulness of the system seriously,” or that “materially increased the risk to be assumed by the insurer,” or that has “a direct tendency to shorten life,” or that is “grave, important or serious.”

The overwhelming weight of the evidence, indeed all of it— the lay testimony and the physical examination and laboratory tests at the Veterans hospital — , shows that the general soundness and healthfulness of the insured’s system was not seriously affected by his ailment. That the lay testimony has probative force, see Coxson v. Atlantic Life Ins. Co., 142 Texas 544 , 179 S.W. 2d 943 ; Vann v. National Life & Accident Ins. Co., Texas Com. App., 24 S.W. 2d 347 ; Texas Law of Evidence, 2d Ed. Vol. 2, sec. 1427, p. 271.

To support their conclusion that, as a matter of law, the insured was in bad health, the majority give no consideration to the legal definitions of “good health” to which reference has been made above, but turn instead to a statement by the Court of Civil Appeals in American National Life Ins. Co. v. Corley Co., 73 S.W. 2d 598 , which is quoted with approval in American National Ins. Co. v. Lawson, 133 Texas 146 , 127 S.W. 2d 294, 295 , as follows: “His [the insured’s] good faith in believing that he was in sound health at the time the policy was delivered will not authorize a recovery if in fact at the time of delivery of the policy he was suffering from an ailment of a substantial nature which continued and ultimately caused his death.” In both of those cases the courts were dealing only with the question of whether lack of knowledge by the insured of his condition would avoid the effect of the “good health” provision of the policy; in neither did the court purport to lay down a legal definition or test of good health. The majority also cite Wright v. Federal Life Ins. Co., Texas Com. App., 248 S.W. 325 , but in the opinion they reject the test announced in that case.

Even if we accept the language used in the Lawson and Corley Co. cases as a proper test,, I respectfully submit that the *37 conclusion of the majority is still incorrect and insupportable for two reasons: (1) because the word “substantial,” as used in the test, is given a meaning in this case wholly at odds with the meaning we have heretofore given it; and (2) because under the evidence in this case the question of whether the insured was, on the effective date of the policy, “suffering from an ailment of a substantial nature” is a fact question. These reasons will be discussed separately.

(1) I can see no difference in meaning of the words “substantial” and “serious” as used in legal definitions or tests of “good health,” as evidently neither do the majority since the words are used interchangeably in the opinion. In our unqualified approval of the opinion of the Court of Civil Appeals in Sovereign Camp W.O.W. v. Derrick, Texas 64 S.W. 2d 982 , we approved that part of the opinion in which it is said that a disease or ailment which affects the general soundness and healthfulness of the system seriously does not embrace “an ‘affection even though curable only by medical or surgical treatment, but nevertheless readily remediable and so not necessarily tending to shorten life, before it has become so far developed as to have some bearing in praesenti, upon the general health,’ ” and we approved also that further part in which it is said that such an “affection would not constitute a bodily infirmity of a substantial nature, nor materially, nor necessarily increase the risk of the insurer, nor could it be said such an affection constituted bad health.” We have thus said that diseases or ailments are not to be regarded as serious or substantial if they are readily remediable so as to have no bearing in praesenti upon the general health. As above pointed out, the record shows conclusively that the insured’s affliction had had no effect on his general health when the policy became effective. If we may sav that it is a matter of common knowledge that those afflicted with epilepsy of the grand mal type are subjected to some greater than normal risk of injury or death by the nature of the seizures which manifest the affliction, and accordingly that we may take judicial notice of that fact, we are immediately met with the medical testimony in this record that such added danger was easily remediable and could be eliminated by simple ministrations of dilantin sodium, and that at all times material to this inquiry it was so eliminated.

(2) The majority opinion lays some stress on the fact that some nine months after the effective date of the policy the insured died during a series of seizures, inferably as the result *38 of having obtained the wrong drug. But in addition to the factor of death from an affliction, the test of the Lawson case recognizes the further factor that on the effective date of the policy the affliction must have been substantial. The majority opinion recognizes that death from an affliction is not the only factor in the test. An early death from an affliction is nothing more than evidence that the existing affliction at the effective date of the policy was substantial or serious. This is graphically illustrated by the fact that the insurer may cancel a policy for breach of the “good health” provision while the insured still lives. Let me illustrate: A and B each had pneumonia in the same stage of development when policies were delivered. A submitted to penicillin injections and was restored to normal health within a week, but B, because of his religious views, refused to submit thereto and died within a week. There is medical testimony that there was some danger of death of both from pneumonia at the time of delivery of the policies but that injection of penicillin in proper dosages would have rendered death wholly improbable. Suits are filed to cancel both policies for breach of the good health provisions. Would we say because B died his ailment was of substantial nature, as a matter of law, when his policy was delivered, but that the jury could find that A’s was not because the medical testimony and his speedy recovery was evidence that it was easily remediable by proper treatment? It seems to me that the Question of good health would have to be resolved by the same test in both cases and that in both it would be a fact question.

Although the insured in this case died from an affliction which he had on the effective date of the policy, the question still remains whether at that time the affliction was of such a serious or substantial character as to avoid the policy. This is the heart of the case, and, I submit, is a true fact question under the evidence in the case. The majority make short shrift of it on the ground that the insured undoubtedly "had epilepsy of the most serious type when he took out the policy.” Granted. The statement is no more meaningful than one that the insured had acne in its most serious form. The question still remains: how serious was his epilepsy? It is in answering this question that the testimony of Dr. Rounsaville becomes all-important and, to my mind, controlling.

On the effective date of the policy the insured was in good general health. He was having no seizures. There is no evidence he had had any for many months preceding and none that he *39 had any thereafter until the time of his death. His seizures during the critical period had been suppressed and eliminated by the taking of dilantin sodium. Dr. Rounsaville’s testimony is that one so situated “can lead his normal life and do anything anybody else can do,” “can have a normal life in every respect,” and “is in sound health for all purposes.” “Sound health” and “good health” are synonymous terms. Soverign Camp W.O.W. v. Derrick, Texas Civ. App., 64 S.W. 2d 982, 983 , writ refused ; Couch on Insurance, sec. 885a.

The majority seem to discard Dr. Rounsaville’s testimony that the insured was, in fact, “in sound health for all purposes” on the theory that it invades the province of this court to declare that, in law, he was not. I doubt the validity of the reasoning for it is well settled that even lay witnesses may express an opinion as to the state of a person’s health. See Coxson v. Atlantic Life Ins. Co., 142 Texas 544 , 179 S.W. 2d 943, 945 ; 19 Texas Jur. 354-357, Expert and Opinion Evidence, sec. 231, and cases there cited, and Texas Law of Evidence, 2d Ed., Vol. 2, sec. 1427, p. 271, and cases there cited. But if we may thus dispose of Dr. Rounsaville’s testimony that the insured was in in “sound health,” we cannot, on the same basis, ignore his testimony that the insured, with his seizures suppressed and eliminated, could lead a “normal life” and could “have a normal life in every respect.” Reasonable inferences from the testimony are that the epilepsy, with seizures eliminated, would have no serious or substantial effect on the health of the insured and that he would have a normal life expectancy. The jury was not required to believe the testimony or to draw the inferences mentioned, Coxson v. Atlantic Life Ins. Co., 142 Texas 544 , 179 S.W. 2d 943, 945 , but it had a right to do so and this court should not annul the verdict on our conclusion, without supporting evidence, that the opinion expressed was unsound or incorrect.

The true basis of the majority position (although it is not so stated in the opinion) is that they have taken judicial notice that epilepsy, with all abnormal danger to health eliminated, nevertheless seriously and substantially affects health and breaches the policy provision. There is nothing in this record to show that a victim of epilepsy of the grand mal type, with seizures suppressed, is in any worse condition of health than is a victim of either of the milder forms of epilepsy with seizures suppressed. Through the device of judicial notice we thus narrow the area for the functioning of the jury or trial judge in “good health” cases well inside boundaries heretofore fixed by the courts, and do it on a record in which all the evidence, *40 both lay and expert, repels the conclusion we have reached. The inevitable result is that in all cases in which a disease or ailment, whatever its nature, exists at the time a policy is delivered and contributes to the insured’s death we will appropriate first to ourselves the right to say, based upon judicial notice only, and even contrary to all the evidence adduced, that because the disease or ailment introduced some added element of danger to life it was therefore a serious or substantial one when the policy was delivered. This is hardly in harmony with most court decisions.

The effect that disease has on health is a subject on which doctors are peculiarly fitted by education and experience to testify and one on which judges are ill-fitted to pass without the aid of expert testimony. The general rule is that courts will not take judicial notice thereof. In Poignee v. John Hancock Mutual Life Ins. Co., Mo. App., 147 S.W. 2d 677 , 683, writ of certiorari quashed, 348 Mo. 829 , 155 S.W. 2d 250 , the court refused to take judicial notice that diabetes was “a progressive, incurable disease.” In General Accident Ins. Co. v. Hayes, Texas Civ. App., 113 S.W. 990, 992 , no writ history, the court refused to take judicial notice that heart disease and paralysis were “non-confining illnesses.” In American Casualty & Life Co. v. Gueringer, Texas Civ. App., 205 S.W. 2d 423, 424 , no writ history, the court recognized that “the details of the nature and progress of the disease of cancer are not subjects of either common or judicial knowledge.”

In a series of cases the courts of Alabama have refused to take judicial notice that the presence of certain diseases breached the good health provision of insurance policies. See Independent Life Insurance Co. v. Butler, 221 Ala. 501 , 129 So. 466, 469 , (“The diseases [high blood pressure, heart disease, or kidney disease] pleaded in these pleas as a breach of the alleged waranty [sound health] not being as a matter of common knowledge, such as would increase the risk, to sustain the plea defendant had the burden of showing that the insured was afflicted with the alleged diseases; that they were serious, and such as affected the general soundness of his health”) ; Independent Life Ins. Co. v. Vann, 24 Ala. App. 93 , 130 So. 520, 523 (“while the courts have said that certain diseases are, as matter of law, diseases which tend to shorten life and to materially increase the risk, in policies of life insurance, this court is not willing to add to the list the disease which at present is called ‘ulcerated stomach’ ”) ; Louisiana State Life Ins. Co. v. Phillips, 223 Ala. 5 , 135 So. 841, 842 (“This court does not judicially know *41 that syphilis increases the risk of loss”) ; Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192 , 146 So. 524, 525 (Defense was breach of “sound health” provision for that the insured was suffering from “cirrhosis of the liver, splenomegalia, oedema of the lungs, ascites or syphilis.” The court said: “There are types of fatal maladies of which the courts take judicial knowledge, such as tuberculosis or cancer, as being material to the risk of insurance; the courts take no such knowledge of or as to the several forms of diseases such as syphilis, cirrhosis of the liver, or other ailments alleged in the pleas.”).

The Texas cases I have examined in which it was held or assumed, as a matter of law, that a particular disease breached the good health provisions of a policy involve tuberculosis, American National Ins. Co. v. Lawson, 133 Texas 146 , 127 S.W. 2d 294 ; Wright v. Federal Life Ins. Co., Texas Com. App. 248 S.W. 325 ; Cancer, Morris Ass’n of Brownwood v. Tatum, Texas Civ. App., 152 S.W. 2d 871 ; no writ history; advanced stage of paresis where insured was adjudged a lunatic before the policy was delivered and died 20 days after it was delivered, Phipps v. American National Ins. Co., Texas Civ. App., 116 S.W. 2d 800 , writ dismissed; pelvic cellulitis, Hughes v. American National Ins. Co., Texas Civ. App., 146 S.W. 2d 470 , no writ history, in which insured was treated in April, the policy was delivered on May 2nd and insured died on May 17th.

In a number of other cases, often referred to as involving holdings that certain diseases breached the condition as a matter of law, the appellate courts in reality affirmed judgments of trial courts in which the issue was treated as a fact question and “bad health” was found by the jury or trial judge. See as to cancer American National Ins. Co. v. Corley, Texas Civ. App., 73 S.W. 2d 598 , no writ history; American Banker’s Life Ins. Co. v. Pate, Texas Civ. App., 161 S.W. 2d 587 , no writ history; tuberculosis, Southern Surety Co. v. Benton, Texas Com. App., 280 S.W. 551 ; heart trouble, Great National Life Ins. Co. v. Hulme, 134 Texas 539 , 136 S.W. 2d 602 ; influenza, Ofield v. National Benefit Life Ins. Co., Texas Civ. App., 293 S.W. 271 , no writ history; Denton v. Kansas City Life Ins. Co., Texas Civ. App., 231 S.W. 436 , no writ history; syphilis for which insured had been operated, American National Ins. Co v. Crylstal, Texas Civ. App., 272 S.W. 262 ; nature not shown, American National Ins. Co. v. Jarrell, Texas Civ. App., 50 S.W. 2d 875 , no writ history.

It thus appears that tuberculosis is the only disease, disclosed *42 by my research, which this court has held or assumed, on the basis of judicial notice, will breach the “good health” provision of an insurance policy, as a matter of law. I respectfully suggest that in this day of miracle drugs we should be most reluctant to extend it to other diseases, particularly to those with which a person may yet lead a normal life. Experience in recent years with veneral diseases, pneumonia and many other diseases which once claimed the lives of many of their victims should teach us that. The question should be regarded and treated as one of fact on which both parties are at liberty to offer evidence of the serious or non-serious effect of the particular disease on health, with the right in the appellate courts to reverse and remand when a verdict or a finding is contrary to the great weight and preponderance of the evidence and to reverse and render when there is no evidence to support a verdict or judgment. This matter should be dealt with as other questions are dealt with and should not be disposed of on the basis of judicial notice.

We have held that the burden is on the insurer to plead and prove a breach of the good health provisions of an insurance policy. Trevino v. American National Ins. Co., 140 Texas 500 , 168 S.W. 2d 656, 659 . Petitioner asks a judgment in this case (and the majority have awarded it) on a record absolutely devoid of such proof, and in so doing has left many questions bearing on the vital issue unanswered. Petitioner’s district manager testified that petitioner will “consider” writing policies of insurance on the lives of epileptics. Are such policies written at normal or higher than normal premium rates? If higher than normal, how much higher ? What is the normal life expectancy of epileptics similarly situated? How does it compare with the life expectancy of non-epileptics? What do the mortality experience tables show? How much greater is the risk in insuring the lives of epileptics? To what extent is the risk lessened by the regular taking of dilantin sodium? Is epilepsy ever the direct and immediate cause of death or is it only a secondary contributing cause? Are there members of the medical profession who áre of the belief that epilepsy with seizures eliminated is a serious and substantial rather than a non-serious and insubstantial menace to life? If so, why was their testimony not offered on the trial? These questions clamor for answer by the party which had the burden of proof; but by taking judicial notice^ that the insured was in bad health because he was an epileptic we have not only relieved the insurer of its burden and supplied answers which we cannot judicially know but at *43 the same time have made it impossible for an epileptic-insured to prove that the disease or ailment did not seriously affect his Health or materially increase the risk of the insurer.

This is not a case in which the evidence shows that on the effective date of the policy the insured was in the last stage of a fatal illness from which death followed in a few days, or a few weeks, or even in a relatively few months. In this case, on the basis of judicial knowledge, we reject the testimony of one doctor, although it is in the strongest possible terms; and once having done it, we must in the next case of epilepsy reject all evidence of good health even if there should be ten doctors testifying that the affliction had no serious effect on the health of the insured and would not materially affect his normal life expectancy. If we are right in the conclusion we reach through judicial notice then undoubtedly petitioner could have produced evidence to support the conclusion, and had it done so it might well have convinced the jury as many insurers have done in other cases (see cases cited supra) and thus have had its victory at the initial stage of this proceeding.

I would affirm the judgments of the courts below on the ground that the jury finding was supported by evidence of probative force, and accordingly would not reach the question of waiver discussed in the majority opinion.

Opinion delivered November 20, 1957.

Rehearing overruled December 18, 1957.

Emphasis throughout this opinion the writer’s unless otherwise indicated.