TEXAS PRUDENTIAL INSURANCE COMPANY, Petitioner, v. Oral Vera DILLARD, Respondent, 307 S.W.2d 242

GARWOOD, Justice. The application for writ of error in this case and the answer thereto present two questions, as follows:

(1) As a matter of law on the evidence was the deceased insured, Clarence Gurthery Dillard, not in good health within the meaning of the life insurance policy in suit when the policy was delivered to him on or about April 15, 1953, by petitioner, Texas Prudential Insurance Company? (2) if he was not, has the petitioner insurer waived the “good health” provision or its right to invoke it in this suit? We hold that the insured was not in good health and that there was no waiver.

The insured applied for the policy on a “nonmedical” basis on March 30, 1953, the application specifying a death benefit of $2,032 in favor of his mother, the respondent Oral Vera Dillard. As hereinafter more fully stated in connection. with question (2) above, the application form, or page, on which the insured'made his application contained no inquiry as to whether he had epilepsy, and he was not asked that question by petitioner’s soliciting agent, nor was a medical examination required. The policy was duly issued as applied for with an effective date of April 15, 1953.' The insured died on January 20, 1954.

Petitioner denied liability on the policy and this suit was instituted thereon.

The policy provision in question reads: “This policy shall not be deemed to be in force nor shall the Company be liable hereunder until this policy is manually received by the Insured during his lifetime and while in good health and full settlement made for the first premium called for on the first page of this policy; then upon such delivery it shall become effective as of the effective date of the policy.” The particular defense based on this provision was made the subject matter of a single special issue to the jury, as follows: “Do you find from a preponderance of the evidence that on April 15, 1953 Clarence Guthery Dillard was in good health?” The jury answered “Yes”. (Other findings confirmed that the insured had actually made representations of good health, or absence of bad health, and of not having consulted physicians within the preceding five years, as set forth in his application.

It was also found that these representations were believed by the soliciting agent who took the application. However, further findings were to the effect that such representations were either not false, not material, not relied on by the petitioner insurer, or not intentionally made.

Apparently as a result of these latter findings the petitioner insurer does not at this stage rely on the defense of misrepresentations as such, but only on a breach of the above-mentioned “good health” stipulation in the policy itself.) Judgment was entered for respondent on the jury verdict and the Court of Civil Appeals affirmed. 297 S.W.2d 265. Petitioner here contends, as it did below, that as a matter of law on the evidence the insured was not in good health on the date in question and that accordingly a valid condition precedent to the policy’s becoming effective was not satisfied. American Nat. Ins.

Co. v. Lawson, 133 Tex. 146, 127 S.W.2d 294. The testimony in this latter connection is largely uncontradicted. It appears that the insured was twenty-four years of age at the time the policy of insurance was delivered, was somewhere between five feet, six inches and six feet tall, weighed approximately one hundred and sixty-five pounds, was strongly built and had the appearance of being in good health. Moreover, at that time, there is no evidence of any internal or nonapparent illness or abnormality except as hereinafter stated.

At least as early as 1944, however, at the age of 16 years, he had suffered a convulsive seizure of a type commonly associated with epilepsy. About a year and a half later (1946) he joined the Army, but within less than two months thereafter was given a medical discharge for “psychoneurosis, conversion reaction”. In August and October, 1947, he consulted a Dr. Rounsaville, whose testimony is hereinafter discussed. This physician prescribed for him dilantin sodium, a sedative kind of drug, generally prescribed only for epileptics, which tends to suppress convulsions.

While the insured took this medicine more or less regularly thereafter, in the latter half of 1948, he entered, and spent approximately a month in a Veterans’ Administration Hospital, where his illness was diagnosed as epilepsy and where he suffered additional convulsive seizures.

Except for his time out at the hospital in 1948, he evidently worked more or less ' regularly, although for different employers, from the time of his medical discharge from the Army in 1946 until May, 1953, or very shortly after he took out the policy in suit. ' At that time he ceased work for some two months, resuming employment in July, 1953, only to stop again some four months later — in November, 1953. While still unemployed, on January 17, 1954, he began to suffer a series of continuous con- • vulsive seizures, which culminated in his death on January 20th.

Although the record does not give the specific dates of all, or even many, of his seizures, nor connect them clearly with his periodical suspensions or changes of employment, the only fair inference is that, between 1944 and the onset of his final series of convulsions in January, 1954, he suffered an average of more than one seizure per year, including at least one in each year prior to taking out the policy in suit in 1953.

The principal witnesses testifying on behalf of the respondent beneficiary as to the generally healthy appearance and activity of the insured were the respondent herself, her daughter (sister of the insured) and a young lady, Mrs. Caldwell, who, prior to her marriage, was a high school classmate of the sister and friend of the latter and the insured. The first two witnesses lived in the same house with the insured up to and including the time the policy was taken out. However, Mrs.

Caldwell appears to have known him largely as an incident to her acquaintance with his sister, and seems to have seen little of him after 1948, around which time she apparently married Mr. Caldwell. All of these witnesses testified unequivocally to the fact of the respondent’s having seizures prior to the time he took out the policy, and the portion of their testimony pointing toward good health of the insured is obviously qualified accordingly. A sample of the testimony of the respondent is: “Q. Now, from your knowledge, do you know whether Clarence had Epilepsy? A. Well, that is what they called it.

Now, I don’t know. As far as I know — that is all I know. “Q. From 1948, from the time he got out of the Army, up until the time of his death, tell this jury approximately how often he would have such attacks, if he had them at all. A. Well, sometimes he would go as high as almost a year; and sometimes then he would have one in six months — go six months without having one. “Q. Now, except for the interval of time in which he was actually having such an attack, did he ever evidence any other symptom of ill-health to you ? A. No, sir, not ever”.

The respondent also confirmed that the insured went to the Veterans’ Hospital in 1948. Samples of the testimony of the sister are: “Q. Did you ever observe anything else concerning Clarence’s condition other than these periodic attacks that he might have? A. No, sir. "Q. Tell this jury the frequency, if at all, of any attacks that Clarence might have had. A. You mean how often ? “Q. Yes. A. I know one time he went a year or so without having one. * * * * ⅜ * “Q. Pie did have seizures ? A. He had seizures, yes. “Q. Was he taking dilantin all the time? A. He was taking some medicine. I guess that is what it was.

I think that is what they called it. “Q. Did he ever not take the dilan-tin or the medicine? A. Yes. “Q. On what occasions did he not? A. He would stop taking it to see if he was cured. I mean, he would think he had taken it long enough to be cured, and he would stop to see if he was cured. “Q. When he stopped taking it, then what happened? A. After so long a time he would have a spell”. The sister also testified to the details pi a typical seizure of the insured, describing them as convulsive in character.

She stated that she considered him to be in danger of strangling at such times and that his brothers, if-present, “would get a spoon or something and hold his tongue to keep him from biting it.” She also referred to seizures occurring while the deceased was seated and while he was standing, stating that in the latter instance he would fall down and, upon regaining consciousness thereafter, “would complain of headaches and he would know if he had hurt himself.” Mrs.

Caldwell, although obviously not in the company of the insured nearly as often as were his mother and sister, admitted to witnessing his seizures on “two or three” occasions. The other witnesses as to the healthy appearance and conduct of the insured, to wit, Mr. Caldwell and the insurance agent, Leonard G. Kil-lough, were clearly not in a position to, and did not purport to, contradict the fact of the seizures, nor did any witness purport to do so or to minimize their dramatically serious character.

Nor, unless as above noted, did any witness purport to minimize the number of the seizures occurring prior or subsequent to the taking out of the policy. Dr. Eounsaville abo-ve mentioned was the only medical witness at the trial. He testified that the insured probably had epilepsy even during such time as his seizures were suppressed by medicine.

He also testified that there are three types of epilepsy characterized by their respective types of seizure and known, respectively, as grand mal (French for “greatly bad”) petit mal (French for “little bad”) and psychomotor seizures; that grand mal seizures are manifested by a stiffening of the muscles, unconsciousness and convulsions, followed by sleep (precisely the characteristics of the seizures of the insured as described by family witnesses for the respondent beneficiary) ; that petit mal seizures are usually experienced by children and are manifested by a brief period of day-dreaming or staring into space, no convulsions; that psy-chomotor attacks are of much smaller magnitude and are manifested by a temporary unawareness of what the victim is doing.

As stated, following his consultation with Dr. Rounsaville in August and October, 1947, the assured took more or less regularly the dilantin sodium which the doctor then prescribed; except that, as described by his sister, he undoubtedly suspended taking it from time to time in the evidently vain hope of detecting progress toward a cure. On the day on which his fatal series of seizures began, the insured sent his brother to have the prescription refilled, and a seizure followed shortly after his taking the first capsule of the medicine thus obtained.

The insured continued to take the same capsules, but continued to have seizures in rapid succession until his death three days later. As to the character of the particular medicine thus taken, the only testimony was that of the respondent and Dr. Rounsaville. The former said she thought the capsules were smaller than the ones theretofore taken and showed some of them to Dr. Rounsa-ville after the death of the insured. The doctor, in turn, testified rather vaguely as follows: “Q. Did she show you any of the * * * A. (Interrupting) Yes, sir, she did. “Q. Do you know what those were ? A.

Well, I couldn’t categorically say. In my opinion, they looked more like delvinal sodium instead of dilantin sodium, which is a sedative made by Sharpe & Dohme. “Q. Would delvinal sodium have any beneficial effect on a person suffering from epileptic seizures? A. It could if it were strong enough to curtail the seizures. It’s a sedative.” Dr. Rounsaville also testified that he knew of no cure for epilepsy and that, as before stated, the insured probably had epilepsy while his seizures were suppressed by dilantin sodium.

His testimony, including that last above quoted, is to the effect that dilantin sodium, while generally prescribed only for epileptics, is a sedative that is, something calculated'to relieve the effects of a disease rather than to cure it. He also testified as follows: “Q. And as long as this Dilantin Sodium is taken, a man won’t have epileptic seizures, will he? A. If the dose is adequate and he stays on it. “Q. That’s right. And he can lead his normal life and do anything anybody else can do as long as he takes that drug can he not? A. As long as his seizures are under control. “Q. Yes, sir.

And he can work and he can have a normal life in every respect, isn’t that right? A. Yes, sir. “Q. And as long as he takes that Dilantin, he is in sound health for all purposes? A. Yes, sir.” There is no doubt that at the time the policy was issued, the insured was afflicted with a disease that produced and had been producing, the same sort of seizures or convulsions from which he died some nine months later. We further conclude that the minds of reasonable men could not differ from the view that the disease in question was epilepsy, and of the worst type.

The generally “normal” appearance and behavior of the insured and the even robust character of his general physique lose all of their significance as evidence of good health or against bad health, once it is made clear, as it is, that, at the critical time, he actually had the disease and in its worst form. Proof of the outward appearance of good health may well make the issue one of fact in many, even most, cases, but obviously not in every one.

An individual may appear quite robust to his employer, family and friends and be himself conscious of tio serious ailment and yet turn out to have had beyond doubt a dangerous disease that no insurer would care to risk. To say that such testimony of apparent good health is admissible is not necessarily to say that it creates a fact issue regardless of all other evidence in the case. This being so, we think the case falls within the scope of the rule stated in Wright v. Federal Life Ins. Co., Tex.Com.App., 248 S.W. 325, and American National Ins. Co. v.

Lawson, supra, to the effect that, where the insured, at the time of taking out a policy with a “good health” stipulation such as that before us, is suffering from a serious kind of illness, which continues and eventually causes his death, the condition of “good health” is not fulfilled. The insured undoubtedly having epilepsy of the most serious type when he took out the policy in 19S3 and undoubtedly dying from it some nine months thereafter, he was as a matter of law not in good health at the former time, and the finding of the jury to the contrary should have been disregarded.

The only serious argument that can be made to the contrary is that based on the above-quoted statement of Dr. jRounsaville to the effect that if and so long as the insured should take dilantin sodium at the proper times and in the proper dosages he would be in sound health. The statement was not one that the insured was in good health, and even if it had been, it would not have supported the verdict in the face of the undoubted fact (which the doctor did not pretend to question, but in fact confirmed) that the insured had epilepsy and soon died from it.

To alter the legal result of these undoubted facts on the strength of a doctor’s opinion that the insured was in good health notwithstanding such facts would be to accept the doctor’s legal definition of good health rather than the court’s. This we could not do. The kind of testimony given by Dr. Rounsaville might, indeed, be apt for certain situations- — for example, one in which there were a question as to whether the illness which ultimately proved fatal was yet, at the time the policy was delivered, in such a stage as not to be classed as serious.

Evidently there is an area in which persons actually having a disease are yet properly held to have been in “good health” at the time, although they later grow worse for lack of medical attention and die. We are cited to no decisions which persuade us against the foregoing views. In Poignee v. John Hancock Mut. Life Ins. Co., 147 S.W.2d 677, 680 (a two-to-one judge decision of an intermediate appellate 'court of Missouri, which the Supreme Court of that state declined to review “on the merits” for lack of conflict with another decision. State ex rel. John Hancock Mut. Life Ins. Co. v.

Hughes, 348 Mo. 829, 155 S.W.2d 250), the insured had diabetes a few years prior to receipt of the policy and died of diabetes, but it was not clearly established that he had diabetes when he received the policy. The court said that the latter quesion was “the supremely important question” in the case and held it to be for the jury, there being no proof that diabetes once existing would necessarily persist nor other proof conclusively showing the insured to llave still had it when he received the policy.

There was no contention that having the disease might, on the evidence, be consistent with a state of good health by reason of the availability of medicine that would, keep it in abeyance. Sovereign Camp, W. O. W. v. Derrick, Tex.Civ.App., 64 S.W.2d 982, wr. of er. refused, is essentially similar to the Poignee case, supra, in that, while the insured admittedly died of cancer slightly over two months after the time when the insurance contract required him to be in good health, nevertheless, there was a serious question as to whether the cancer had actually existed as a disease at the critical time.

The insured had a mole on his body which had evidently existed for a long time without any ill effects whatever upon him, but which, during the relevant period, began to evidence abnormality by bleeding. The court upheld a jury finding of good health, but clearly on the single theory that the erstwhile innocuous mole was not conclusively shown to have been a cancer at all at the critical time. Relevant language from the opinion in this connection is quoted in the footnote.

The case definitely does not hold that, admitting the insured to have had cancer at the critical time, there was yet a fact question as to his good health because of testimony that the disease could have been retarded or kept in abeyance by medical means. If there is any inference to be drawn from the case in this latter connection, it is that actual existence of the cancer at the critical time would have avoided liability of the insurer. The court in the Derrick case cited Cady v. Fidelity & Casualty Co. of N.

Y., 1907, 134 Wis. 322, 113 N.W. 967, 17 L.R.A.,N.S., 260, which involved a warranty of the insured that he was in good health and not “afflicted with any local or constitutional disease”. Actually, the insured died by jumping or falling down an elevator shaft in the hospital in which he was confined after undergoing surgery on account of a “stricture”; but the “good health” provision was nevertheless invoked by the insurer, and there undoubtedly was strong evidence that the ailment in question, the nature of which does not fully appear, existed upon the delivery of the policy.

The actual decision merely upheld a jury instruction by the trial court to the effect that “an organic stricture” was a “local disease”, but would not be such “ * * * unless the affection was so far developed and had become so serious as to have some bearing upon his general health”. Even the broader implications of this holding amount to no more than that a disease existing at the time of delivery of the policy must be of a serious, as distinguished from trivial, nature in order for the “good health” provision of the policy to be breached.

The case obviously does not cover the point of whether the actual existence of an otherwise admittedly serious disease may be consistent with a state of good health merely because the disease could have been kept in abeyance by medicine, although actually it was not. Coxson v. Atlanta Life Ins.

Co., 142 Tex. 544, 179 S.W.2d 943, likewise involved only the question of whether the disease (pulmonary tuberculosis) actually existed, or existed in serious form, at the time of delivery of the policy, the insured having gone to the hospital with active tuberculosis only some two months thereafter, and having died therefrom about fourteen months later.

The evidence was, indeed, almost conclusive to the effect that the disease was “active” prior to the policy delivery, and a jury finding of “good health” was upheld largely on the strength of general evidence from lay witnesses as to the normal appearance and activities of the insured before he went to the hospital. Nevertheless, the point involved was not whether, assuming the insured to have had “active” tuberculosis at the critical time, he might yet be considered in good health because of the ready availability of effective treatment for the disease. Vann v.

National Life & Accident Insurance Co., Tex.Com.App., 24 S.W.2d 347, sustained a verdict of good health in a case where the insured undoubtedly had a cancer only a month before delivery of the policy, undoubtedly had a cancer of the same organ some five months following the policy delivery, and undoubtedly died from cancer of the same organ some four months thereafter.

During the early part of the month preceding the policy delivery she was given radium treatments, and there was. medical testimony to the effect that she showed considerable improvement in the brief period between the end of the treatments and the policy delivery, no signs of the cancer being apparent to her physician about that time.

There was also some medical testimony from which it could have been inferred that under these circumstances the cancer might never have recurred during the balance of the lifetime of the insured, although the same physician also testified that “we do not consider them in sound health for a period of five years”. There was also lay testimony from the beneficiary husband and a daughter that at the time in question the insured appeared and acted as if in normal health.

Even in that case, however, the point at issue appears to have been whether, considering the nature of the particular disease, the insured actually had it at the time in question or, in other words, whether the disease might not have been regarded as cured. The same distinction is applicable to American Home Life Insurance Company v. Zuniga, 5 Cir., 228 F.2d 403, which was a cancer case and purported to follow the Derrick, Coxson and Vann cases, supra.

As to the further question of whether the petitioner insurer has waived, or is estopped to assert, the “good health” provision of the policy, the burden of requesting any necessary jury issues was upon the respondent. The record does not show, and she does not assert, that she requested any and, none being submitted, she has waived the point, unless waiver or es-toppel is established as a matter of law, as the respondent argues that they were. Rule 279, Texas Rules of Civil Procedure. The facts are, in our opinion, against the respondent’s contention.

The declaration which the insured signed by way of an application occupied all of page 1 of a four-page printed document, or set of documents, in regular use by the petitioner, and consisting of a very large sheet doubled over so as to make in effect two smaller sheets or four pages. Page 1 was in effect a separate form by itself containing numerous questions to be answered by the applicant, these being immediately followed (at the bottom of the page) by spaces for the date and signatures of the applicant, the soliciting agent, and other insurer representatives.

At the top of the page in large type were the following words: “For Use Of Application, See Note 1 On Page 4 Non-Medical “Application To The Texas Prudential Insurance Company “Galveston, Texas” This form, or page, called for, and the insured made and certified by his signature, all the required statements, including the following: (

a) In the blank corresponding to any military medical discharges received, the declaration is “Stomach disorder. Works every day, never goes to Dr. Does not bother him.” (

b) The inquiry as to whether the applicant had “consulted or been treated by any physician or physicians for any cause whatever during the past five years” is answered, “No”, (

c) To inquiries concerning past illness, the answer was that the applicant had never had any disease and did not at the time of the application have “any physical or mental defects — or disease of any kind”. The only express inquiries about particular ailments were as to whether the applicant or any of his family had ever suffered from tuberculosis or insanity. These were answered in the negative, as was the further question of whether the applicant had ever been refused life insurance or “rated up”.

Page 2 (reverse side of 1) and page 3 together constitute in effect a second and separate form beginning at the top of page 2 with the title, “Part II. Texas Prudential Insurance Company Application. Declaration Of Applicant In Lieu Of Medical Examination.” Following this title and in much more extended form than on page 1, is a set of detailed inquiries of a medical nature and otherwise, including whether the applicant had ever been “affected with” any one or more oí some fifty or more listed specific ailments, including “epilepsy”.

This form, in effect, duplicates inquiries contained on page 1 with regard to tuberculosis, insanity and sundry other matters, but not the inquiries of page 1 as to various other matters, such as age and address of the applicant, name of the beneficiary, and particular character of the insurance applied for. At the end of this “Part II” (as at the end of p. 1) are found spaces for date of application and signature of the applicant. No part of pages 2 and 3 was filled in, nor does any signature appear thereon.

There is no reference in the page 1 form to the pages 2-3 form, and no express reference in the latter with respect to the former. The top of page 4 bears the title “Agent’s Report”, and the questions following include one as to the applicant’s appearance as indicating “good health and a strong-constitution”. This latter question was answered “Yes”, and the other questions were also answered, the soliciting agent signing at the bottom of this particular form in the place provided for his signature.

At the bottom of page 4, separated from the agent’s signature, appear several “notes”, including the “Note No. 1”, referred to in the title on page 1 above mentioned. This note is copied below. The application, as before stated, called for $2,032 insurance. At the trial an official of the petitioner insurer testified that, “If the amount of insurance on an ordinary policy is less- than $3,100.00”, only the forms on pages 1 and 4 are to be filled out, whereas, for amounts between $3,100 and $5,000 the form on pages 2 and 3 must also be used, while for amounts over $5,000 a regular medical examination is required.

This testimony was in nowise contradicted, and finds confirmátion in the “Note 1” above-mentioned, although the latter is not altogether clear to the casual reader in and of itself.

The soliciting agent who took the application did not display a very accurate or consistent memory, but did testify without contradiction that he did not ask whether the insured had had epilepsy or convulsions,, had no information to this effect, and accepted as true the above-mentioned answers of the insured reflected on the page-1 form with regard to the Army medical discharge, the absence of any disease or physical defects and the matter of not having consulted physicians. (The jury,, as before stated, found that the insured actually made all these statements, and that the petitioner insurer and its agents believed them.) There is no proof that the-petitioner insurer or its agents knew, or had any reason to suspect, that the insured had suffered from epilepsy or seizures or any other serious ailment, unless such knowledge be inferred, as the respondent seems to think it should be, from his answer of “Stomach disorder” to the inquiry about his service medical discharge.

In this connection, the record discloses no jury issue or request therefor, should such be relevant, as to any negligence of the petitioner in believing, as it did, what the insured stated or in failing to investigate the matter otherwise. In Lee v. Mutual Protective Ass’n of Texas, Tex.Civ.App., 47 S.W.2d 402, 403, wr. of er. dism., which is cited for the respondent, the application answered the “good health” question with the words “In bed part of the time”, and the insurer nevertheless issued the policy, the insured dying shortly thereafter.

The insurer’s defense based on the “good health” provision of the policy was rejected in the following language: “It is just as certain under the decisions that, if the association had knowledge of the fact that Mrs. Lee, at the time the certificate was delivered to her, was not in good health, or (what we construe to be the same thing) was in such state of health as required her to be in bed part of the time, its act in delivering the policy with such knowledge, and collecting the dues thereon, renders said provision in the certificate as against the pleas of waiver and estoppel unavailable as a defense.

We need not stop to inquire whether such defense be accurately denominated a ‘waiver’ or an ‘estop-pel.’ ” (47 S.W.2d 402, 404; emphasis supplied.) At a further point in the opinion, the court said: “We now pass to the more difficult question of whether the court’s findings show that the association [as distinguished from the soliciting agent] had knozvledge when the certificate was delivered that Mrs. Lee was not in good health.

The existence of waiver or estoppel, it must be borne in mind, is dependent upon the existence of such knowledge.” (47 S.W.2d 402, 405; emphasis supplied.) The rule thus stated does not apply to the instant case, in which there was no “knowledge” on the part of the insurer, and in which any conceivably relevant fact issue of negligence in not knowing was waived.

Nor do we know of any decision or rule restricting rights of an insurer under a “good health” provision to cases in which it has made an investigation of the applicant’s health apart from his own declarations or cases in which it has expressly asked him about the particular disease from which he died. Actually we know of no requirement that the applicant be asked anything at all about his health as prerequisite to enforcement of the “good health” provision.

And if the insurer chooses to ask only general questions except as to one or two diseases, we know of no rule saying that it thereby waives its policy rights as regards all diseases not specifically asked about. Thus the contention boils down to whether the claimed waiver necessarily follows from the mere fact of the insurer having available both the “Part II” form (pages 2-3) with questions about epilepsy (and some fifty or more other diseases) and the short form on page 1 and electing to use only the latter.

The logic of such a contention, if sound, would mean a waiver of the “good health” provision with regard to virtually every disease known to science, since most of them are included in “Part II” in addition to epilepsy. Obviously any such waiver would not be a consensual one, the applicant evidently not knowing about “Part II”.

As to any ex parte waiver by the petitioner, the latter being under no obligation to ask about particular diseases, the page 1 form being evidently a complete form in itself and neither form containing any reference to the other, an inference of intent to waive would hardly follow without more evidence to support it. Such other evidence as there is, to wit, the “Note 1” and the uncontradicted proof that "Part II” simply was not used in applications for less than $3,100 insurance, tends to weaken, rather than support, the inference and certainly keeps it from being established as a matter of law.

We are also unable to agree with the additional theory of waiver or estoppel based on the alleged conduct of the petitioner in declining the claim on grounds other than the policy provision in question. True, the brief letters of the petitioner, on which the respondent relies, did speak in terms of the insured misrepresenting or withholding the facts in connection with his disease and did not' expressly refer to the “good health” provision of the policy.

However, the omission was, at worst, a formalistic one, hardly calculated to mislead, or prejudice the position of, the respondent; and there is no finding or proof in the record to indicate that it did so. The only decision cited for the respondent on this point, National Aid Life Ass’n v. Murphy, Tex.Civ.App., 78 S.W.2d 223, wr. of er. dism., may, indeed, stand for the proposition that the declination of a claim on one ground may estop the insurer from asserting a distinct ground later, where the delay has been prejudicial to the claimant.

However, we do not find it applicable to the facts of the instant case, which are substantially different. Our holdings require both a reversal of the judgments below and a rendition of judgment that the respondent take nothing, unless we consider that the case has not been fully developed in respect of the issue of good health of the insured. See cases collected under notes to Rule 50S, Franki’s Vernon’s Annotated Texas Rules.

While we have some doubts in this latter connection, we note that the respondent’s otherwise rather elaborate brief contains no request for a remand in the event we should agree, as we do, with the position of the petitioner on the issue mentioned. From this we assume that the respondent considers the case fully developed from her standpoint, and we accordingly conclude that both judgments below should be reversed and judgment rendered that the respondent take nothing. It is so ordered. CALVERT, SMITH and WALKER, JJ., dissenting.

GREENHILL, J., not sitting. . “We do not understand that a disease or ailment which affects the general soundness and liealthfulness of the human system seriously to 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.’ Cady v. Fidelity & Casualty Co., 134 Wis. 322, 113 N.W. 967, 971, 17 L.R.A.,N.S., 260.

And such affection would not constitute a bodily infirmity. of- a substantial nature, nor materially or necessarily increase the risk of the insurer, nor could it be said such an affection constituted bad health. Hence the very time of the inception or the beginning of the ravages of the terrible (¡Asease mth which James B. Berrido died, is all important in this ease as there is no room for doubt but what he died as a direct result of' metastases from a molano sarcoma.” 64 S.W.2d 982, 983; emphasis supplied. . “Note No. 1.

Complete pages 1 and 4 for Age 0 to attained Age 1, for amounts up to $2,500.00; from attained Ago 1 through Insurance Age 45, for amounts not exceeding $3,100.00, Standard Risks only. Por all other cases up to and including $5,000.00, the entire application must be completed. When only pages 1 and 4 are to be completed, no Inspection is necessary. The writing Agent’s Report on page 4 must be completed in all cases. Regardless of the amount of Insurance applied for, if the applicant is a female,

Part II on page 3 must be completed. “When Payor Benefits are desired and Payor is not over Insurance Age 45, complete this form on the Payor in addition to application on the child.”