Carmen L. Garcia v. John Hancock Variable Life Insurance Company

John Hancocks motion for rehearing invites this court to re-examine its disposition of this summary judgment proceeding in light of John Hancock Mut. Life Ins. Co. v. Esparza, 286 S.W.2d 695 (Tex. Civ. App.--San Antonio 1955, writ refd n.r.e.). In Esparza, the insured permitted his insurance to lapse for non-payment of a premium, and thereafter, the insurer submitted to him an application for reinstatement. Id. at 696. When filling out the form, the insured stated: (1) he was in sound health, (2) during the period of his default in paying the premium he had not suffered from any disease or had symptoms of such, and (3) he had not consulted or been treated by a physician or other practitioner. In fact, he had been to seven doctors and was under daily treatment for cancer of the bone, hands, arms and chest; two months and two days after he made the statements, the insured died of cancer. Id.