Empire Standard Life Insurance Co. v. Carroll

343 S.W.2d 715, 1961 Tex. App. LEXIS 1741

• Court: Court of Appeals of Texas
• Decided: January 31, 1961
• Docket: No. 7286
• Status: Published

Opinion

FANNING, Justice.

Appellee, in a case tried before a jury, recovered judgment against appellant insurance company for surgical and hospitalization benefits under two policies of insurance issued by appellant, and also recovered an attorney’s fee.

Appellant on appeal presents a single point to the effect that the trial court erred in overruling defendant’s motion for judgment non obstante veredicto, contending that the qualified uncontroverted evidence reflected that the loss occasioned by the plaintiff resulted from sickness or illness which originated prior to the date of the policies in question.

Only two witnesses (other than an x-ray technician who testified as to x-rays taken of appellee which were introduced in evidence) testified with respect to matters concerning the issue of whether or not the loss occasioned by plaintiff resulted from sickness or illness which originated prior to the date of the policies in question, to-wit: appellee who testified in his own behalf, and a doctor who testified in behalf of appellant insurance company. The testimony of these two witnesses was contradictory and inconsistent in material respects as shown by the record. The jury resolved all contradictions and inconsistencies in the evidence in favor of appellee by its verdict and findings upon the special issues submitted.

Appellant’s point is overruled under authority of the following cases: Vann v. National Life & Accident Insurance Company, Tex.Com.App., 24 S.W.2d 347; Coxson v. Atlanta Life Insurance Company, 142 Tex. 544, 179 S.W.2d 943; Fry v. Dixie Motor Coach Corporation, 142 Tex. 589, 180 S.W.2d 135.

The judgment of the trial court is affirmed.