
    ATLANTA MUT. INS. ASS’N v. HEARD.
    No. 4015.
    Court of Civil Appeals of Texas. Texarkana.
    May 21, 1931.
    
      O^Neal & Harper, of Atlanta, for appellant.
    Bartlett, Harvey & Bartlett, of Linden, for appellee. ■
   WILLSON, C. J.

(after stating tbe case as above).

In ber written acceptance of the policy issued to ber, Mrs. Heard agreed, if sbe bad made any misstatement as to ber bealtb or physical condition in ber application tberefor, that tbe policy should “become null and void.” In tbe application referred to, Mrs. Heard stated that sbe was then in good bealtb. Tbe jury having found on uncontradicted testimony that sbe was, instead, in bad bealtb, and knew sbe was at tbe time she made the statement, appellant insists tbe judgment should have been in its favor, and that tbe trial court, therefore, erred when be overruled its motion that be render such a judgment.

Tbe contention should ¡be sustained, unless it ought to be held that tbe finding that the false representation as to ber bealtb was not made by Mrs. Heard “wilfully and with intent to deceive,” or tbe finding that appellant in issuing tbe policy did not rely upon the statement as true, warranted tbe judgment in appellee’s favor.

As to tbe first one of tbe two findings just specified, appellant insists it did not warrant tbe judgment rendered, because, it says,. tbe representation in its legal effect was a warranty tbe breach of'which worked a forfeiture of tbe contract evidenced by tbe policy, without reference to whether tbe false statement in question was made “wilfully and with intent to deceive” or not. We think tbe contention should be sustained. Judd v. Aid Ass’n (Tex. Civ. App.) 269 S. W. 284; Ins. Co. v. Pinson, 94 Tex. 553, 63 S. W. 531; Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 867; Ins. Co. v. Owens, 60 Tex. Civ. App. 398, 130 S. W. 858; Modern Order of Praetorians v. Davidson (Tex. Civ. App.) 203 S. W. 379; Woodmen v. Atcheson (Tex. Civ. App.) 219 S. W. 537; Ins. Co. v. Richbourg (Tex. Com. App.) 257 S. W. 1089; Hemphill County Home Protective Ass’n v. Richardson (Tex. Civ. App.) 264 S. W. 294, 297. Tbe provision in subdivision 4 of art. 4732, R. S. 1925, that statements made by tbe insured shall “be deemed representations and not warranties,” is not in conflict with tbe conclusion reached, because by its terms it applies only in tbe absence of fraud. Certainly tbe statement that tbe insured was in good bealtb when sbe was in bad bealtb, and knew sbe was, was fraud within tbe meaning of tbe statute, as to appellant, if it did not know tbe statement was false, and was induced to issue tbe policy by its reliance on tbe truth of tbe statement.

As to tbe other one of said two findings, appellant insists it was without evidence to support it, and that for that reason the finding could not be treated as a sufficient basis for tbe judgment rendered. Tbe theory of appellee was that in issuing tbe policy appellant did not rely upon tbe statement of Mrs. Heard in tbe application that sbe was in good bealtb but, instead, relied upon information as to the condition of ber health it obtained by an investigation it made for that purpose. It may be conceded it appeared appellant started an inquiry to ascertain tbe state of Mrs. Heard’s bealtb, but ■ it must be said there was an absence of any evidence showing it succeeded in obtaining any information by such inquiry. It conclusively appeared that all tbe information appellant had as to the matter was tbe statement of Mrs. Heard in ber application that sbe was in good bealtb. In that state of tbe record, we do not think it should be held that the judgment was sustainable on tbe theory advanced by appellee.

' As we view it, tbe judgment is wrong. It should have denied appellee a recovery of anything, and have been in appellant’s favor for costs. Therefore, it will be reversed, and judgment will be here rendered in appellant’s favor.  