American Mut. Aid Soc. v. Bronger

• Decision Date: 04 April 1891
• Citation: 91 Ky. 406,15 S.W. 1118
• Parties: AMERICAN MUT. AID. SOC. v. BRONGER.
• Court: Kentucky Court of Appeals

15 S.W. 1118

91 Ky. 406

AMERICAN MUT. AID. SOC. v. BRONGER.

Court of Appeals of Kentucky.

April 4, 1891

Appeal from court of common pleas of Jefferson.

Simrall & Bodley, for appellant.

O'Neal Jackson & Phelps and Lane & Burnett, for appellee.

PRYOR J.

This case involves a question of law and one of fact. It was heard by the court without the intervention of a jury. The insured made application to the appellant to have his life insured for the benefit of the appellee. The appellant is a mutual aid society. In answer to the question, "Have you made application for insurance in any other company," the insured responded, "No." An application had been made to another company and the insured or his application refused; the examining physician discovering, as he thought, some trouble with his heart. The examining physician for the appellant made the same discovery, but, upon a more thorough examination, became convinced that he was all right. A second physician examined him, and concurred in his views with the regular examining physician. Not long after the insurance had been effected the insured committed suicide, and there is no pretense that his heart was the cause of his mental trouble, or that he had any other physical disease. The court held, as a matter of law, separating his findings of law from those of fact, that the failure to answer the question as to his prior application for insurance correctly was not a material representation, as it would not have affected the application made to the appellant, because the latter had the same to state its finding, except generally, for the plaintiff or necessary to except to the findings of law by the court, so as to raise the question in an appellate court, as in a case where a jury is passing on the facts under findings of law made by the court; that in the admission or rejection of testimony, or the determination of any legal question, during the progress of the case, the exception must be reserved at the time. It is too late after judgment to raise the question by a motion for a new trial; if otherwise, it then becomes unnecessary to except at all until the judgment is rendered. The court would have told the jury that the answer to the question propounded was not material, and an exception must be made in such a case to be available in this court. It may be argued that the counsel may not know how the court will interpret the law until final judgment, and this may be so. Still an exception to the judgment would...