REPUBLIC BANKERS LIFE INSURANCE CO. v. Morrison

487 S.W.2d 373, 1972 Tex. App. LEXIS 2770
CourtCourt of Appeals of Texas
DecidedOctober 24, 1972
Docket8106
StatusPublished
Cited by5 cases

This text of 487 S.W.2d 373 (REPUBLIC BANKERS LIFE INSURANCE CO. v. Morrison) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
REPUBLIC BANKERS LIFE INSURANCE CO. v. Morrison, 487 S.W.2d 373, 1972 Tex. App. LEXIS 2770 (Tex. Ct. App. 1972).

Opinion

RAY, Justice.

C. F. Morrison and wife Ruth Morrison, appellees (plaintiffs), brought suit against Republic Bankers Life Insurance Company, appellant (defendant) to collect benefits due under an insurance policy. The insurance company issued its policy covering Morrison and wife, agreeing to pay certain benefits in the event either party was hospitalized. Thereafter, Ruth Morrison was hospitalized in the Gaston Episcopal Hospital and Baylor University Medical Center in Dallas and appellee C. F. Morrison in Hopkins County Memorial Hospital. Appellant denied the claims of appellees, and this suit resulted. The claim of C. F. Morrison was settled. Trial was before a jury for costs of Ruth Morrison’s confinements, totaling $759.95, and for the twelve per cent statutory penalty and reasonable attorney’s fees. The jury answered all issues favorably to appellees, and judgment was entered in accordance with the verdict. Appellant insurance company timely filed its appeal to this court, urging six points of error.

On November 23, 1967, appellant Republic Bankers Life Insurance Company issued its new Gold Star non-cancellable-guaran-teed renewable for life-hospital, surgical and medical policy covering C. F. Morrison and wife, Ruth Morrison. Appellant plead that the sickness for which Ruth Morrison was hospitalized originated either before the issue date of the policy or within six months after the date of issue; that is, it originated before May 23, 1968, and did not come under the coverage of the policy. Appellant’s policy contained the usual ex- *375 elusion which in substance states that no indemnities shall be payable under the policy for any loss or disability unless the cause thereof originates after the policy has been in force for six months. The defense urged by appellant insurance company was that the illnesses for which Ruth Morrison was hospitalized on two different occasions originated before May 23, 1968, and would therefore not be covered by the policy. Mrs. Morrison was hospitalized on September 19, 1968, and underwent an operation for the removal of a goiter. She was again hospitalized on January 13, 1969, at which time surgery was performed removing an extruded disc.

Appellant’s points of error I and II concern the first hospitalization of Mrs. Morrison on September 19, 1968. It is urged by appellant that no evidence was introduced which would support the jury finding that the sickness for which Ruth Morrison was hospitalized the first time did not originate before May 23, 1968; and, secondly, that the finding of the jury that the sickness originated after May 23, 1968, was so contrary to the great weight and preponderance of evidence as to be clearly wrong. Appellant did not raise any points concerning the factual insufficiency of the evidence as outlined by Chief Justice Robert W. Calvert in his article, “No Evidence and Insufficient Evidence,” 38 Tex.Law Rev. 361, 366 (1960). This article makes it clear there is a difference in points on “factual insufficiency of the evidence” and “great weight and preponderance of the evidence” points. Insufficiency points are those on which the factual evidence presented is too weak to support a jury verdict. Great weight and preponderance of the evidence points are those on which there is so much evidence presented contrary to the jury findings as to make the jury’s verdict manifestly wrong.

Appellant very candidly points out in his brief:

“On direct examination, Ruth Morrison testified that some 27 years before she took out the insurance policy she had been treated for thyroid trouble; that she did not have any treatment for thyroid trouble from that time until she went into the hospital; that she had not had any trouble with her throat until shortly before she entered the hospital in September, 1968; that a few days before she entered the hospital she sneezed and it felt like her throat was bursting; and that she had a bad choking sensation and could not swallow too well.”

Mr. Morrison testified that he had never heard his wife complain of anything being wrong with her throat or neck for a number of years. A friend of Ruth Morrison for twenty years testified that she had never heard Ruth Morrison complain of anything being wrong with Ruth Morrison’s neck. The medical records of Gaston Episcopal Hospital indicate in the “history” and “discharge summary” dated September 19, 1968, and September 27, 1968, respectively, that appellee started having trouble with her goiter approximately two years before she was admitted for the thy-roidectomy. After the medical records were introduced, Mrs. Morrison testified that they were in error for the reason she had not experienced thyroid trouble two years before giving the histories to the doctors and nurses. Mrs. Morrison testified that 27 years before the appellant’s policy was issued she suffered some throat trouble or thyroid trouble, but it was of a short duration, and she had no further trouble until shortly before she entered the hospital on September 19, 1968. It was her further testimony that her family physician of twenty-one years had never treated her for thyroid trouble nor given her any medicine for thyroid trouble.

We think the evidence was sufficient to raise the issue of whether or not the sickness for which Ruth Morrison was hospitalized on September 19, 1968, originated before May 23, 1968. Since the evidence was sufficient to raise the issue, appellant’s point of error No. I (the no evidence point) is overruled.

*376 After a thorough review of the testimony and evidence in this case, we have concluded that appellant’s point of error No. II (the great weight and preponderance of the evidence point) should also be overruled. While it is true that the evidence was conflicting as to when Mrs. Morrison’s goiter again started giving her trouble, that was a matter for the jury to resolve. Since the jury resolved the issue in favor of Mrs. Morrison, we cannot say there was so much evidence in the record to the contrary as to conclude that the jury was manifestly wrong in arriving at its verdict. Appellee Ruth Morrison was competent to testify as to the condition of her health and her freedom from sickness until shortly before she entered the hospital in September of 1968. The jury was not required to accept the medical histories as being free from error. We therefore conclude that the evidence was sufficient to sustain the jury verdict concerning the hospitalization of September 19, 1968. Reserve Life Ins. Co. v. Kelly, 266 S.W.2d 395 (Tex.Civ.App. San Antonio 1954, dism’d); International Security Life Insurance Company v. Kamp, 462 S.W.2d 63 (Tex.Civ.App. Beaumont 1970, writ dism’d); 45 C.J.S. Insurance § 893, pp. 968, 972. Recovery could be had under the terms of the policy in this case when the illness first manifested itself after the prescribed waiting period, notwithstanding the medical cause thereof may have antedated the inception of the policy. International Security Life Insurance Company v. Kamp, supra.

Appellant’s points of error III and IV relate to the hospitalization of Mrs. Morrison on January 13, 1969. The points urged are “no evidence” and “contrary to the great weight and preponderance of the evidence” respectively, contending that the evidence established that Mrs. Morrison had an extruded disc before May 23, 1968.

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Bluebook (online)
487 S.W.2d 373, 1972 Tex. App. LEXIS 2770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/republic-bankers-life-insurance-co-v-morrison-texapp-1972.