(concurring).
I think the trial court entered correct judgments in favor of appellee under the record in these cases and I concur in the af-firmance of the judgments of the trial court for the following reasons:
I think appellee’s motions for instructed verdict were well taken and I would sustain appellee’s second counterpoint, reading as follows: “The evidence was so uncontro-verted as to raise no issue for the jury that the false statements made by Dr. Roosth in his application for the insurance herein involved were made with the intent to deceive the appellee insurance company.” See the following authorities: Texas Prudential Ins. Co. v. Dillard, Tex., 307 S.W.2d 242; John Plancock Mutual Life Ins. Co. v. Esparza, Tex.Civ.App., 286 S.W.2d 695, wr. ref., n. r. e.; Pence v. United States, 316 U.S. 332, 62 S.Ct. 1080, 86 L.Ed. 1510; McSweeney v. Prudential Ins. Co., 4 Cir., 128 F.2d 660, certiorari denied 31 U.S. 658, 63 S.Ct. 57, 87 L.Ed. 529. It is my view that the conclusion must be reached under the controlling undisputed facts in these causes that the false statements of Dr. Roosth with reference (1) to his failure to report his examination at Smithwick Foundation or Medical Associates in Boston, Massachusetts, (2) that he knowingly failed to disclose that within five years preceding the dates of the medical examiner’s reports he had consulted Dr. Dera Kinsey or Dr. Reginald H. Smithwick of Boston, Mass., (3) that the cause of death of his mother was childbirth, were not ignorantly made nor were they innocent misstatements of facts, as in Great Southern Life Ins. Co. v. Doyle, Tex.Com.App., 136 Tex. 377, 151 S.W.2d 197; Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W. 2d 820, and other cases of like import. In this connection see the case of John Hancock Mutual Life Ins. Co. v. Esparza, supra (286 S.W.2d 695, 697), wherein it is stated:
"Esparza’s false statements were not ignorantly made, nor were they innocent misstatements of the facts, as in Great Southern Life Ins. Co. v. Doyle, Tex.Com.App., 136 Tex. 377, 151 S.W. 2d 197; Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W. 2d 820; Bankers Standard Life Ins. Co. v. Atwood, Tex.Civ.App., 205 S.W. 2d 74; Imperial Life Ins. Co. v. Cartwright, Tex.Civ.App., 119 S.W.2d 683; Colorado Life Co. v. Newell, Tex.Civ. App., 78 S.W.2d 1049, and other cases. He knew, when he made the misrepresentations, that he was suffering from a malady of the arm, hands and chest, that he was almost daily receiving deep X-Ray treatments at the Santa Rosa Hospital in San Antonio, that he walked each day from his home to the hospital to receive the treatments, that he had consulted and had been treated by massage, X-Ray, drugs and electrical apparatus by at least seven different doctors and that the treatments and his illness had continued up to the date of the application. The finding that Es-parza did not intend to deceive is contrary to the controlling undisputed facts that he knew, intended to and did deceive the insurer in falsely answering the three material matters stated above. This Court, in an almost identical case, so ruled in American Nat. Ins. Co. v. Stevens, Tex.Civ.App., 262 S.W. 833. See also Jackson v. National Life & Accident Ins. Co., Tex.Civ.App., 161 S. W.2d 536; National Life & Accident Ins. Co. v. Burden, Tex.Civ.App., 101 S.W.2d 292; Texas Prudential Ins. Co. v. Authement, Tex.Civ.App., 64 S.W. 2d 391; Aetna Life Ins. Co. v. Ship-ley, Tex.Civ.App., 134 S.W.2d 342.
“The motion for judgment non ob-stante veredicto should have been granted. We conclude, in any event, the findings that there was no intent to deceive is against the overwhelming preponderance of the evidence. The judgment is reversed and rendered can-celling the policy.” (Emphasis added.)
It was also undisputed in the evidence that the concerned matters were material to *658the risk and were relied upon. It is my best judgment that the controlling undisputed facts in the cases when considered in connection with Dr. Roosth’s skill and proficiency as a doctor and internist in the very field of medicine with which these cases are ■concerned as well as his knowledge and experience in conducting medical examinations for insurance companies on applicants for life insurance compel the conclusion from all the circumstances in the cases that what was said and left unsaid was ■done willfully and with the intent to induce the defendant insurance company to issue the policies of insurance. Since the conclusion seems inescapable that these false answers were knowingly made and were not ignorantly or inadvertently made, the requisite intent to deceive must be legally inferred.
If I am correct in my conclusion that ap-■pellee’s second counterpoint is well taken, this conclusion would be controlling and decisive and would compel affirmance of the judgments of the trial court.
However, if I should be mistaken in my ■view that appellee’s second counterpoint should be sustained, then I would further hold that no reversible error is presented by the record and that the judgments of the trial court should be affirmed.
The able trial court, with due judicial •caution, did submit the cases to the jury upon special issues. The jury’s answers to the special issues clearly authorized the trial ■court to render judgments for appellee herein upon more than one theory. Also appellant has not presented any points attacking the jury’s findings on such issues on the •grounds of “no evidence,” “insufficiency of the evidence” or “that same were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.”
I think appellant’s first point does not ■present reversible error under this record .and I would sustain appellee’s counterpoint One (in reply thereto) which reads as follows :
“The Trial Court’s interpretation of the phrase ‘wilfully and with intent to induce,’ was correct and adequate when considered in context with the remainder of the associated special issues in which such phrase was used, and in connection with the affirmative answers to the special issues immediately preceding the same.”
In this connection see the following authorities : Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820; Maniatis v. Texas Mutual Life Ins. Co., Tex.Civ.App., 90 S.W.2d 936; Universal Life & Accident Ins. Co. v. Mayse, Tex. Civ.App., 287 S.W.2d 305, wr. ref., n. r. e.; Inter-Ocean Ins. Co. v. Ross, Tex.Civ.App., 315 S.W.2d 71; Gorman v. Jefferson Standard Life Ins. Co., Tex.Civ.App., 275 S.W. 248; Pence v. United States, supra; Mc-Sweeney v. Prudential Ins. Co., supra.
In Maniatis v. Texas Mutual Life Ins. Co., supra, (90 S.W.2d 936, 938) it is stated:
“Appellant contends that the judgment cannot stand because there was neither pleading nor finding by the jury that the alleged false representations were intentionally made for the purpose of deceiving the insurer. We do not understand that this was necessary. The application contained a statement that the representations were made for the purpose of securing the insurance and should become a part of the contract, and • that, if any of the statements herein were untrue, the contract would thereby be nullified. It was alleged and the jury found that the statements in the application were material and false, and that the insured knew that they were false when he made them, and that they were relied on by the association in issuing the policy. Clearly, if the statements were known to be false and were made for the purpose of inducing the contract and actually accomplished that purpose, as undisputably appears from-the record, the contract was procured by *659fraud and should not be allowed to stand." (Emphasis added.)
In McSweeney v. Prudential Ins. Co., supra (128 F.2d 660, 664, certiorari denied 317 U.S. 658, 63 S.Ct. 57, 87 L.Ed. 529), it is stated:
“We think it clear that fraud of the sort required to avoid the policy is shown to exist where there is a false representation as to a material matter, which is false to the knowledge of the applicant at the time it is made and which is made for the purpose of being acted on by the company. Where these facts appear, it is idle to inquire further whether there was intent to defraud; for the intent to defraud in such case is the intent to obtain the policy by the false representations.” (Emphasis added.)
It is my view that the trial court’s definition of the term “willfully and with intent to induce” was not erroneous and in no event constitutes reversible error under the record in these causes.
It is my further view that the issues as, submitted comprehended “intent to deceive” and when the jury found that the statements made were false and found to the effect that Dr. Roosth knew they were false, it naturally followed that such answers were made with the intent to deceive. This is especially true in these cases as the record compels the conclusion that the doctor’s answers were not ignorantly made nor were they made inadvertently.
Furthermore, appellant did not object to the court’s failure to submit a special issue directly on conscious intent to deceive and if such an issue was necessáry (which I do not think was necessary under the record in these cases) the appellant waived the same being submitted to the jury, and under Rule 279, T.R.C.P., the trial court found on said issue in support of his judgments, as pointed out by Chief Justice CHADICK in his opinion in these causes. While I would overrule appellant’s first point on the additional grounds hereinbefore stated, I do concur with the conclusion reached by Chief Justice CHADICK that appellant’s first point should be overruled.
I fully agree with Chief Justice CHADICK’S discussion of appellant’s 2d, 3rd, 4th and 5th points and fully agree that none of these points present reversible error under the record in these causes.
Finding no reversible error in the record in these causes and finding that the trial court entered correct judgments in favor of appellee, I concur in the affirmance of the judgments of the trial court.