(dissenting).
This was originally written to be the opinion of the court and I file the same with minor changes as my dissent. I seriously doubt that we have reached a disposition of the case.
On March 21, 1955, appellee, American General Life Insurance Company, issued its policy No. 109,680 to Dr. Harold Roosth, insuring his life for the sum of $10,000, and payable to his wife, Rosa Lee Leaman Roosth, as beneficiary. He had previously made application for a $25,000 policy but because of a heart attack he had had the insurance rate was so high that he only took a $10,000 policy.
In 1956, Dr. Harold Roosth and a brother, Dr. Wiley Roosth, constructed a hospital in the city of Tyler at a total cost of in excess of $80,000. In November of 1956, Dr. Roosth made application to appellee for a mortgage retirement policy, but was informed that the Company would not issue to him such policy. He was informed at the same time that they would issue him additional life insurance. He made application for additional life insurance and on December 9, 1956, appellee issued its policy No. 135,404, insuring the life of Dr. Harold Roosth for the sum of $50,000 with his three children as beneficiaries.
On February 7, 1957, Dr. Roosth died of a sub-arachnoid hemorrhage. At the time *660of his death, all premiums upon the aforesaid policies had been fully paid and apparently they were in full force and effect. Proofs of death were duly presented to ap-pellee, but appellee denied liability under the terms of said policies, basing its denial upon the ground that Dr. Harold Roosth had made false answers to certain questions upon application for the insurance and alleged that he was not in good health at the time said applications were made nor at the time the policies were issued. It further alleged that he concealed from the Insurance Company the fact that he had been to a hospital for examination and treatment for abnormally high blood pressure, excessive hypertension and had a disease of the arteries.
The cases were filed under different numbers but were tried simultaneously by the trial court and they are disposed of as a single suit.
Trial was to a jury and in response to the extensive special issues, the jury rendered the following verdict:
"Special Issue No. 1:
“Do you find from a preponderance of the evidence that the answer of Harold Roosth to Question No. 6 contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, to-wit: ‘Are you now in good health and free from impairment’ was false?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issues No. 2 to 5, inclusive, were not answered.)
“Special Issue No. 6:
“Do you find .from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, he, the said Harold Roosth, then had or had ever had abnormal blood pressure?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 7:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answers in the Medical Reports inquired about in Special Issue No. 6, if you have so found in answer to said issue, knew or should have known that he then had or previously had had abnormal blood pressure?
“Answer ‘Yes’ or ‘No.’
“Anszver: Yes.
“Special Issue No. 8:
“Do you find from a preponderance of the evidence that Harold Roosth made such answers inquired about in Special Issue No. 6 willfully and with intent to induce the Defendant to issue the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
C.P.P.
“Answer: Ne, Yes.
“Special Issue No. 9:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth in said Medical Examiner’s Reports which are inquired about in Special Issue No. 6 were material to the risk in issuing the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Anszver: Yes.
“Special Issue No. 10:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated December 9, 1956, in reliance upon the answers made by Harold Roosth in the Medical *661Examiners’ Reports inquired about in Special Issue No. 6?
“Answer ‘Yes’ or ‘No.’
“Ansiver: No.
“Special Issue No. 11:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, he, the said Harold Roosth, then had or had ever had hypertension as a disease?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issues No. 12 to 15, inclusive, were not answered.)
"Special Issue No. 16:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, he, the said Harold Roosth, then had or had ever had essential hypertension?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 17:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answers in the Medical Reports inquired about in Special Issue No. 16, knew, or should have known that he then had or previously had had essential hypertension?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
"Special Issue No. 18:
“Do you find from a preponderance of the evidence that Harold Roosth made such answers inquired about in Special Issue No. 16 willfully and with intent to induce the Defendant to issue the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
"Special Issue No. 19:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth in said Medical Examiners’ Reports which are inquired about in Special Issue No. 16 were material to the risk in issuing the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Ansiver: Yes.
"Special Issue No. 20:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated December 9, 1956, in reliance upon the answers made by Harold Roosth in the Medical Examiners’ Reports inquired about in Special Issue No. 16?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
"Special Issue No. 21:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, he, the said Harold Roosth, then had or had ever had an indication of disease of the arteries?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issues No. 22 to 25, inclusive, were not answered.)
"Special Issue No. 26:
“Do you find from a preponderance of the evidence that Harold Roosth, in making *662his answer to Question No. 9 contained in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, failed to disclose or reveal therein that special electrocardiogram, blood pressure, X-ray and other physical tests were previously conducted upon him at the Smithwick Foundation or Medical Associates in Boston, Massachusetts?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 27:
“Do you find from a preponderance of the evidence that Harold Roosth, in making his answer to Question No. 9 contained in the Medical Examiners’ Reports inquired about in Special Issue No. 26, knew, or should have known that special electrocardiogram, blood pressure, X-ray and other physical tests were previously conducted upon him at Smithwick Foundation or Medical Associates in Boston, Massachusetts, if you have so found in answer to the preceding issue?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 28:
“Do you find from a preponderance of the evidence that Harold Roosth made his answers to Question No. 9 of the Medical Examiners’ Reports, inquired about in Special Issue No. 26, willfully and with intent to induce the Defendant to issue the policy of insurance dated December 9, 1956 ?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 29:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth to Question No. 9 of said Medical Examiners’ Reports, which are inquired about in Special Issue No. 26, were material to the risk in issuing the policy of insurance dated December 9, 1956 ?'
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 30:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated December 9, 1956, in reliance upon the answers made by Harold Roosth to Question No. 9 of the Medical Examiner’s Reports inquired about in Special Issue No. 26?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
"Special Issue No. 31:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth to Question No. 12 contained in the Medical Examiners’ Report dated November 11, 1956, and November 28, 1956, that he did not then have any physical disability other than those specifically mentioned therein, were false?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issues No. 32 to 35, inclusive, were not answered.)
"Special Issue No. 36:
“Do you find from a preponderance of the evidence that Harold Roosth in making his answers to Question No. 15 in the Medical Examiner’s Report of Dr. C. B. Young, dated November 11, 1956, and in the Medical Examiner’s Report of Dr. Porter M. Bailes, Jr., dated November 28, 1956, knowingly failed to disclose or reveal that within five years preceding the dates of said Medical Examiners’ Reports he had consulted Dr. Dera Kinsey or Dr. Reginald H. Smithwick of Boston, Massachusetts?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
*663 Special Issue No. 37:
“Do you find from a preponderance of ■the evidence that Harold Roosth made his answers to Question No. IS of the Medi•cal Examiners’ Reports inquired about in Special Issue No. 36, if you have so found •in answer to said issue, willfully and with intent to induce the Defendant to issue the ■policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
Special Issue No. 38:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth to Question No. IS of said Medical Examiners’ Reports, which are inquired •about in Special Issue No. 36, were material to the risk in issuing the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
Special Issue No. 39:
“Do you find from a preponderance of the evidence that the Defendant issued and ■delivered the policy of insurance dated De•cember 9, 1956, in reliance upon the answers made by Harold Roosth to Question No. 15 contained in the Medical Examiner’s Reports inquired about in Special Issue No. 36?
“Answer ‘Yes’ or ‘No.’
“Ansvser: Yes.
Special Issue No. 40:
“Do you find from a preponderance of the evidence that the answers made by Harold Roosth in the Medical Examiners’ Reports of Dr. C. B. Young, dated November 11, 1956, and of Dr. Porter M. Bailes, Jr., dated November 28, 1956, that the cause •of death of his mother was childbirth, were false ?
“Answer ‘Yes’ or ‘No.’
“Anszver: Yes.
“Special Issue No. 41:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answers in the Medical Examiners’ Reports inquired about in Special Issue No. 40, if you have so found in answer to said issue, knew or should have known, that such answers were false?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 42:
“Do you find from a preponderance of the evidence that Harold Roosth made such answers inquired about in Special Issue No. 40 willfully and with intent to induce the Defendant to issue the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 43:
“Do you find from a preponderance of the evidence that the answers made by Harold Roosth as inquired about in Special Issue No. 40 were material to the risk in issuing the policy of insurance dated December 9, 1956?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 44:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated December 9, 1956, in reliance upon the answers made by Harold Roosth as inquired about in Special Issue No. 40?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes..
“Special Issue No. 45:
“Do you find from a preponderance of the evidence that at the time the policy of insurance issued December 9, 1956, was delivered to him, or at the time the first pre*664mium therefor was paid, Harold Roosth was not in good health (disregarding the residual effects, if any, of his 1948 heart attack) ?
“Answer ‘He was not in good health’ or ‘He was in good health.’
“Answer: Yes, he was in good health.
“Special Issue No. 46:
“Do you find from a preponderance of the evidence that abnormal blood pressure, if any he had, was a contributing cause of the death of Harold Roosth?
“Answer 'Yes’ or ‘No.’
“Answer: No.
“Special Issue No. 47:
“Do you find from a preponderance of the evidence that’hypertension as a disease, if any he had, was a contributing cause of the death of Harold Roosth?’
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“Special Issue No. 48:
“Do you find from a preponderance of the evidence that a disease of the arteries, if any he had, was a contributing cause of the death of Harold Roosth?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 49:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiners’ Report of Dr. C. B. Young, dated February 27, 1955, he, the said Harold Roosth, then had or had ever had abnormal blood pressure?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 50:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answers in the Medical Report inquired about in Special Issue No. 49, if you have so found in answer to said issue, knew, or should have known, that he then had or previously had had abnormal blood pressure?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 51 :
“Do you find from a preponderance of the evidence that Harold Roosth made such answers inquired about in Special Issue No. 49 willfully and with intent to induce the Defendant to issue the policy of insurance dated March 21, 1955?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 52:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth in said Medical Examiner’s Report, which is inquired about in Special Issue No. 49, were material to the risk in issuing the policy of insurance dated March 21, 1955?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 53:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated March 21, 1955, in reliance upon the answers made by Harold Roosth in the Medical Examiner’s Report inquired about in Special Issue No. 49?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 53A:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiners’ Report of Dr. C. B. Young, dated February 27, 1955, he, the *665said Harold Roosth then had or had ever had essential hypertension?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 53B:
“Do you find from a preponderance of the evidence that Harold Roosth in making the answers in the Medical Report inquired about in Special Issue No. 53A, if you have so found in answer to said issue, knew, or should have known, that he then had or previously had had essential hypertension ?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issue No. 53C was not answered.)
"Special Issue No. 53D:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth in said Medical Examiner’s Report, which is inquired about in Special Issue No. S3A, were material to the risk in issuing the policy of insurance dated March 21, 1955?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issiie No. 53E:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated March 21, 1955, in reliance upon the answers made by Harold Roosth in the Medical Examiner’s Report inquired about in Special Issue No. 53A?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 54:
“Do you find from a preponderance of the evidence that when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated February 27, 1955, he, the said Harold Roosth, then had, or had ever had hypertension as a disease?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
(Special Issues No. 55 to 58, inclusive, were not answered.)
“Special Issue No. 59:
“Do you find from a preponderance of the evidence that the answer of Harold Roosth to Question No. 14 of the Medical Examiner’s Report of Dr. C. B. Young, dated February 27, 1955, to-wit: ‘Are you now in good health’ was false?
“Answer ‘Yes’ or ‘No.’
“Answer: No.
“(Special Issues No. 60 to 63, inclusive, were not answered.)
“Special Issue No. 64:
“Do you find from a preponderance of the evidence that prior to the time when Harold Roosth made answers to the questions contained in the Medical Examiner’s Report of Dr. C. B. Young, dated February 27, 1955, any examiner or physician had formally or informally expressed to him, the said Harold Roosth, an unfavorable opinion as to his health?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 65:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answers in the Medical Examiner’s Report inquired about in Special Issue No. 64, if you have so found in answer to said issue, knew, or should have known, that an examiner or physician had, prior thereto, formally or informally, expressed to him an unfavorable opinion as to his health?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
*666 “Special Issue No. 66:
“Do you find from a preponderance of the evidence that Harold Roosth made such answers inquired- about in Special Issue No. 64 willfully and with intent to induce the Defendant to issue the policy of insurance dated March 21, 1955 ?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 67:
“Do you find from a preponderance of the evidence that the answers of Harold Roosth in said Medical Examiner’s Report, which is inquired about in Special Issue No. 64, were material to the risk in issuing the policy of insurance dated March 21, 1955?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 68:
“Do you find from a preponderance of the evidence that the Defendant issued the policy of insurance dated March 21, 1955, in reliance upon the answers made by Harold Roosth in the Medical Examiner’s Report inquired about in Special Issue No. 64?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 69:
“Do you find from a preponderance of the evidence that the answer made by Harold Roosth in the Medical Examiner’s Report of Dr. C. B. Young, dated February 27, 1955, that the cause of the death of his mother was childbirth, was false?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 70:
“Do you find from a preponderance of the evidence that Harold Roosth, in making the answer in the Medical Examiner’s Report, inquired about in Special Issue No_ 69, if you have so found in answer to said; issue, knew, or should have known, that such answer was false?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 71:
“Do you find from a preponderance of the evidence that Harold Roosth made such answer, inquired about in Special Issue No. 69, willfully and with intent to induce the Defendant to issue the policy of insurance dated March 21, 1955 ?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 72:
“Do you find from a preponderance' of the evidence that the answer made by Harold Roosth as inquired about in Special Issue No. 69 was material to the risk of issuing the policy of insurance dated March 21, 1955?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.
"Special Issue No. 73:
“Do you find from a preponderance of the evidence that the Defendant issued and delivered the policy of insurance dated March 21, 1955, in reliance upon the answer made by Harold Roosth as inquired about in Special Issue No. 69?
"Answer ‘Yes’ or ‘No.’
“Answer: Yes.
“Special Issue No. 74:
“Do you find from a preponderance of the evidence that at the time the policy of insurance issued March 21, 1955, was delivered to him, or at the time the first premium therefor was paid, Harold Roosth was not in good health (Disregarding the residual effects, if any, of his 1948 heart attack) ?
*667“Answer ‘He was not in good health’ or '‘He was in good health.’
“Answer: He was in good health.
"Special Issue No. 75:
“What amount do you find from a preponderance of the evidence is a reasonable attorney’s fee, if any, for legal services rendered by Plaintiff’s attorneys in Cases Nos. 57-432 and 57-433?
“Answer in Dollars and cents, if any.
“Answer: $10,000.”
On the basis of the foregoing jury verdict the trial court rendered judgment that appellant take nothing, hence this appeal. Many of the answers are in irreconcilable conflict.
Appellant brings forward five points of error. By Point 1 she complains of the action of the trial court in instructing the ■ jury that the term “willfully and with the intent to induce” to mean “voluntarily and intentionally for the purpose of influencing or persuading” because said definition failed to include the element of wrongdoing or deceit as distinguished from good faith. In the court’s charge, he had asked the jury in several issues whether or not Dr. Roosth made the answers to the questions asked by the examining doctors prior to the issuance of the policies if he had done ■so “willfully and with intent to induce” the Insurance Company to issue the policies. On the face of the record this would hardily seem to present error, but in view ■of the different rulings relative to the avoidance of life insurance policies, it ■seems that the court erred in his definition. After the jury had started deliberating on the verdict, they asked the court for a definition of “willfully and with the intent to induce,” or a dictionary. At which time they notified the court that they “prefer an interpretation.” In reply to this request the trial judge gave the jury the following instructions: “The term ‘willfully and with intent to induce’ means ‘voluntarily and in-' tentionally for the purpose of influencing or persuading.’ ” Appellant preserved her objections to such instructions.
It cannot be said that the issue of good faith, or the conscious intent to deceive, was not an issue for the jury. The evidence in the case was somewhat in conflict but there is no challenge of the sufficiency of the evidence to support the jury’s findings. As to the examinations that Dr. Roosth received at the Massachusetts Memorial Hospitals it can hardly be said that he submitted himself to them for hospitalization and treatment. In 1950, Dr. Roosth carried a brother, Bennie Roosth, who was gravely ill and underwent a most serious operation about which Dr. Roosth, his doctor, was greatly concerned. Dr. Roosth accompanied Bennie to the Massachusetts Memorial Hospitals in 1950 and while there he requested an examination relative to his heart condition. Upon the examination, at a time when he had the tremendous strain and responsibility of caring for his brother, it was found that his blood pressure was high. But he returned to the same people with his brother Bennie for subsequent check-ups in 1951, and again in 1953, and on each occasion his blood pressure was found to be normal. He often stated that he believed himself to be in excellent health or that his health was fine.
After the heart attack in 1948, he took dicumarol daily to prevent his blood from clotting. The doctor who found his blood pressure to be high agreed that the serious stress and strain over the operation of his brother Bennie might have caused an elevation of Dr. Roosth’s blood pressure. During the entire time from 1950 to the date of his death, Dr. Roosth led a normal life.
It is to be noted that the answers of the jury to Special Issues 1, 10, 11, 17, 21, 31, 47, 53b, 54 and 59 were “No.” The jury found in answer to Special Issue No. 1 and No. 59 that the answers given by Dr. Roosth to the examining doctors were not false. The jury also answered in reply to Special Issues Nos. 45 and 74 that, disregarding the residual effects, if any, of his *6681948 heart attack, he was in good health. Therefore, it seems that the instructions given by the trial court were insufficient to comply with the law. The issues came under the term of fraud. The defense of fraud based upon misrepresentation in the application are fundamental and considering such a defense that the burden of proof is upon the Insurance Company to plead and prove that the misrepresentation involved a conscious intent to deceive. Great Southern Life Ins. Co. v. Doyle, Tex.Com. App., 136 Tex. 377, 151 S.W.2d 197, and Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820. There is an article on insurance in Vol. 11, No. 2 of Baylor Law Review, Spring Edition of 1959 at page 236 on the question of “Fraud Necessary to Avoid Life Insurance Policy.” The article is by Otto Wiswell and gives a very thorough discussion of the necessary elements to defeat an insurance policy based upon the ground of false representations. The writer points out that there are five elements that the Insurance Company must plead and prove to avoid a policy for misrepresentations. They are:
“1. The making of the representations
“2. The falsity thereof
“3. Reliance thereon by the insurer
“4. The intent to deceive on the part of the assured in making same
“5. The materiality thereof, that is, was it material to the risk or did the fact represented contribute to the loss in maturing the policy? General American Life Ins. Co. v. Martinez (T.C.A.1941, dism. judgm. cor.), 149 S.W.2d 637.” (Emphasis added.)
The word “willfully” is a word that has numerous meanings. In 94 C.J.S. pp. 620-637, the many uses of the word “willfully” are discussed. I think the word “willfully” as used in the court’s charge for the purpose for which it was intended means “to denote malice” and the term in which it was used should show that the intent of Dr. Roosth was used for the perverted purpose of deceiving and defrauding the Insurance Company. It was an act intentionally done for the purpose of causing injury. A conscious purpose or actual and deliberate intent on the part of Dr. Roosth to injure appellee. Great Southern Life Ins. Co. v. Doyle, Tex.Com.App., 136 Tex. 377, 151 S.W.2d 197, opinion adopted by Sup.Ct.; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864, opinion approved by Sup.Ct.; Texas Prudential Ins. Co. v. Beach, Tex.Civ.App., 98 S.W.2d 1057, n. w. h.
To demonstrate what I have just said, the word “willfully” is defined in Webster’s Dictionary as: “1. of free will, voluntarily, readily. 2. by design; intentionally; of set purpose. 3. in willful obstinate or perverse manner; stubbornly; obstinate. 4. In law, (a) purposefully with the intent of effecting a specific result; (b) maliciously; in direct opposition to unquestionable law.”' (Emphasis added.) The court’s instruction of the word “willfully” “with intent to in-' duce” to mean “voluntarily and intentionally for the purpose of influencing or persuading” would hardly come within the definition of “willfully” as a matter of law. “Voluntarily” is defined in Webster’s Dictionary as “spontaneously; of one’s own will; without being moved, influenced or impelled by others.” “Intentionally” is defined by Webster as: “By design; or purpose; not casually.” “Influencing” is described by Webster as: “To exercise influence on; to modify or affect in some way; to act on; to bias; to sway; as, the sun influences the tides; to influence a person by fears or hopes.”
Persuading is defined by Webster as: “(1) to influence by argument, advice, entreaty, or expostulation; to draw or incline the will of to a determination by presenting motives to the mind. (2) To convince by argument or reason offered, to convince by reasons suggested by reflection or by deliberation, or by evidence presented in any manner to the mind. 3. To inculcate by argument or expostulation.”
*669“Deceive” is defined by Webster to mean: “1. To mislead; to cause to err; to impose on; to delude; to cheat. 2. To beguile ; to divert; to while away.”
As pointed out in Roosth v. Lincoln Nat. Life Ins. Co., 5 Cir., 1959, 269 F.2d 171, that the intent of the mind of Dr. Roosth at the time he made the answers must be considered from the viewpoint of what was in his mind when he gave them. Unless appel-lee intended to waive this important finding, then the issue was not sufficient because it did not possess the intent to deceive at the time the answers were given.
Each of the policies contained the following provision: “All statements made in application for this policy, in the absence of fraud, are deemed representations and not warranties.”
At the time Dr. Roosth was examined by two doctors for each of the policies issued, they did not find any high blood pressure. Of course, the jury found that he did not die from high blood pressure. The jury found that he died from a disease of the arteries and the doctors testified that if he had such a disease he could not have known it. Thus it seems the misstatements, if any, made in the application, were not productive of the death. 24 — B Tex.Jur. 437, Sec. 202 deals with the warranty of the insured that he is in good health is enforceable regardless of the purpose or intent with which they were made. The jury found him to be in good health. Atlanta Mutual Ins. Ass’n v. Heard, Tex.Civ.App., 40 S.W.2d 927. I would sustain the point of error.
By Points 3, 4 and 5, appellant complains of the action of the trial court in refusing to submit his special requested issues Nos. 1 and 2 as to whether or not the appellee had actual knowledge that Harold Roosth had been examined in Massachusetts Memorial Hospitals at the time the policies were issued, and in No. 5 she complained of the action of the trial court because he did not include Massachusetts Memorial Hospitals in the charge but instead used Smithwick and Medical Associates, members of the Massachusetts Memorial Hospitals. Points 3 and 4 present what I think to be reversible error. Upon the trial of the case, appellee offered in evidence a letter from Dr. Arthur Ruskin, a doctor for Dr. Harold Roosth, to the attention of Dr. Ghent Graves, Medical Director for the ap-pellee. The letter is as follows:
“February 24, 1955.
“American General Life Ins. Co.
“P.O. Box 1931
“Houston 1, Texas
“Attn: Dr. Ghent Graves, Medical Director
“Dear Dr. Graves:
“Dr. Roosth has been under my care since December 2, 1949, at which time the second ECG sent you was taken. He had a myocardial infarction in August 1948; was treated in Tyler and recovered uneventfully. At that time G.O. series, gall bladder series, barium enema, all negative. I have seen him frequently until June 1954. During all this time he has never had any symptoms and his physical examination, including size of heart and fluroscopy of the heart have always been negative except for blood pressure findings— highest on December 2, 1949, 150/100, but always since then below 140/90. He has taken excellent care of himself, including prolonged anti-coagulant therapy under my direction. Report from Massachusetts Memorial Hospitals on June 1943 noted essentially the same findings and ECG (Q2 and Q3). Urinalysis, blood count and sedimentation rates all normal. Prompt return, of ECGs will be appreciated
“With best wishes,
“Sincerely yours
“/s/ Arthur Ruskin, M.D.
“Arthur Ruskin, M.D.
“Asso. Prof. Int. Med.
“Univ. of Tex.Med.Br.
“Galveston, Texas.”
*670I will first point out that at the time the lawyers went to take the deposition of any one in connection with the examination, they first reported to Massachusetts Memorial Hospitals to get the records from the library. There they took the deposition of Miss Joyce Gromley. Miss Gromley was the Chief Medical Record Librarian. From her they secured all the information pertaining to the examination of Dr. Roosth. Then, they proceeded to take the deposition of the doctors.
Now, back to the points particularly raised relative to the issues of fact, I quote from Roosth v. Lincoln Nat. Life Ins. Co., supra, as follows:
“If insured was suffering from hypertension, there was ample proof that it was not essential hypertension, that is, chronic or persistent, amounting to a disease; but was occasional hypertension resulting from the fact that he was a tense individual, reacting spontaneously to such stimuli as worry, excitement, frustration. Those closest to him stated that he appeared to be in good health, led a normal life, and did not direct his effort at avoiding strain and tension which would ordinarily be expected of a doctor who suspected that he was the victim of essential hypertension. The foregoing brief analysis demonstrates that reasonable minds would probably reach different conclusions with respect to the questions whether insured had hypertension at all and if so, its character; whether he knew of the condition if it existed and considered it important; whether he deemed it a part of the thrombosis episode and other like questions. That being so, they presented issues of fact and not of law.
“The testimony of Dr. Ruslan was of particular importance to appellant. He was a professor in the University of Texas and had written some eighty papers on cardio vascular diseases. He first examined insured in 1949 and continued to see him and confer with him through the years until the end of 1956. He had never found any evidence from his extended examinations that insured had hypertension in any form, and it had never been mentioned to him. While on the stand he told of writing a letter in February, 1955 to American General Life Insurance Company, which is reproduced in the margin.
“Mr. Balay, underwriter for Lincoln National, admitted that the letter was in Lincoln’s file. The letter was submitted to Lincoln by American in connection with insured’s application to American for insurance. Lincoln rein-sured a great many of American General’s risks, and it was the practice of the two companies to exchange information. Mr. Balay also was examined concerning confidential reports made by investigators who had contacted people who were close to the insured and the report showed him to be a man in apparent good health and one who worked regularly.
“This letter of Dr. Ruskin’s, taken in connection with the underwriter’s testimony, would warrant the finding by the jury that'the insurer was in possession of facts sufficient to put it upon inquiry at the Massachusetts Memorial Hospital, and that failure to do so would amount to a waiver of the claim that the appellant is barred from recovery by failure of the insured to reveal the examinations made in Boston. At all events, the evidence has persuasive force towards warranting the jury in finding that the insurer did not rely on such failure of the insured to disclose the fact of said examination.
“A careful reading of the entire episode involving the examinations by insured in Boston leads to the conclusion that failure to reveal these examinations is not nearly as damaging to appellant’s case as the Company contends. At all events, the evidence, con*671sidered in connection with the countervailing proof on appellant’s behalf, . raises nothing more than a jury question on this phase of the case.” [269 F.2d 176.]
And this was the same Dr. Roosth as involved in this case under consideration.
I concur in the statement by Chief Justice CHADICK that Dr. Roosth was a highly-respected physician. But I cannot agree that Rule 279 assumes that any issue not submitted to the jury was tried by the trial judge. The issue of conscious intent to deceive was a defensive issue. Where the defendant did not request such an issue, the issue was waived. Hall v. Hall, Tex. Civ. App., 298 S.W.2d 950, reversed on other grounds, Tex., 308 S.W.2d 12. There is nothing in the charge that refers to any intent to deceive the Insurance Company. I am unable to go along on the assumption that the trial court tried such an issue. As pointed out in Roosth v. Lincoln National Life Insurance Co., 5 Cir., 1959, 269 F.2d 171, the issue of intent to deceive was for the jury. If the issue was waived by the' appellee, judgment should be here rendered for the appellants.
It seems that the laws of Texas and Florida are different from those of other states and the holding on the direct issue of intent to deceive are mandatory.
There is no issue on the intent to deceive the Company about the statements made by Dr. Roosth about the death of his mother. The only doctor who testified about her death plainly explained how childbirth could easily bring about the condition from which she died. This was also spoken of in Roosth v. Lincoln National Life Insurance Co., supra. To deny the insurance on the finding of the jury on this issue cannot be conceived by me.
Appellee does not concede in its brief here that it cannot maintain the judgment of the trial court unless the five fundamental elements are pleaded and proven: “(1) a false representation; (2) in reference to> material fact; (3) made with knowledge of its falsity; (4) with intent to deceive; (5)'. with action taken in reliance upon the representations.” Although it seems that they made such concessions in the case of Roosth v. Lincoln National Life Insurance Co.,, supra, under the Texas statutes, upon which the Roosth v. Lincoln case, supra, was decided, I find the following:
“Art. 21.16. Misrepresentation by Policyholder
“Any provision in any contract or policy of insurance issued or contracted' for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect,, and shall not constitute any defense to' any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented * * * or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”
“Art. 21.18. Immaterial Misrepresentation
“No recovery upon any life, accident or health insurance policy shall' ever be defeated because of any misrepresentation in the application which is of an immaterial fact and which does not affect the risks assumed.”
From these articles it can be readily seen that .the contentions of the parties and the representations made be a material part of the risk. The case of Madden v. Metropolitan Life Ins. Co., 5 Cir., 1943, 138 F.2d 708, 151 A.L.R. 984, shows that the court held that “a representation, though false, does not avoid the policy unless it was made with conscious intent to deceive; that *672whether it was so made is normally for the jury; and that (even though a question relates to matters of fact such as whether there was a consultation rather than an ■opinion as to whether insured was ill or suffered from a disease), unless the evidence admits of no other conclusion than that there was an intent to deceive, it is for the jury to determine whether the answer was fraudulent in fact, that is, made with intent to deceive, or whether it was given in good faith, that is, without conscious intent to defraud.”
It seems that the courts of Texas have put some rather insignificant meanings to the letter of the statutes. In Texas Prudential Ins. Co. v. Dillard, Tex., 307 S.W.2d 242, our Supreme Court reversed and rendered a cause in which the answer of the jury that the insured on the date of the application was in good health, and made other favorable answers. The trial court and the Courts of Civil Appeals rendered judgment in favor of the beneficiary. In that case Justices Calvert, Smith and Walker dissented; Judge Greenhill not sitting. Although in other cases such as Pioneer American Ins. Co. v. Meeker, Tex.Civ.App., 300 S.W.2d 212, wr. dis., and Trinity Reserve Life Ins. Co. v. Hicks, Tex.Civ.App., 297 S.W.2d 345, n. w. h., the courts hold that the insured must make the false statements with the specific intent to deceive the Insurance Company.
Believing that the issues of fact were presented as to whether or not the Insurance Company had notice of the examination, I would sustain Points 3 and 4. I think that Point 5 is possessed of some merit and suggest that on another trial the ■error complained of here be cured.
By Point 2, appellant complains of the ■action of the trial court in admitting into evidence appellee’s exhibits Nos. 32 and 33, being private investigation reports of the Retail Merchants’ Credit Association upon ■application of Dr. Roosth for insurance. Under the present pleadings and evidence in the record, these exhibits were not admissible for any purpose and the trial court should have sustained an objection to them. I would sustain the point.
I dissent from the opinion of the majority in affirming the case.