Becker v. The Kansas Casualty & Surety Company
| Decision Date | 07 June 1919 |
| Docket Number | 22,196 |
| Citation | 105 Kan. 99,181 P. 549 |
| Court | Kansas Supreme Court |
| Parties | CARRIE E. BECKER, Appellee and Appellant, v. THE KANSAS CASUALTY & SURETY COMPANY, Appellant and Appellee |
Decided January, 1919.
Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. ACCIDENT AND HEALTH INSURANCE -- Misrepresentation in Obtaining Policy--Construction of Statute. The statute (Laws 1907, ch. 226, Gen. Stat. 1915, § 5290), which provides in effect that no misrepresentation made in obtaining a policy on the lives of persons shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency on which the policy is to become due, applies to a policy issued by a health and accident insurance company giving indemnity for loss of life by accidental means.
2. SAME. The application for insurance contained statements as to existing physical conditions, and as to things done and that had not been done by the insured "except as herein stated." No exceptions were stated, but the statements were followed by check marks. It is held that the statements so made are to be regarded as positive declarations of fact, and that they constitute a part of the contract of insurance.
3. SAME--False Statements Affecting Moral Risk May Avoid the Policy. False representations by the insured which affect the moral risk, such as that he had not applied for or taken out other insurance of the same kind, or that he had never received indemnity for accident or illness, while they cannot be regarded as having directly contributed to the accidental death of the insured, are not within the scope or purpose of the statute mentioned, and are not rendered immaterial by the statute.
Fred Stanley, Claude C. Stanley, Benjamin F. Hegler, William Morheiser, and George L. Siefkin, all of Wichita, for the appellant.
Jean Madalene, of Wichita, for the appellee; Thomas C. Wilson, and Charles B. Hudson, both of Wichita, of counsel.
Carrie E. Becker was the beneficiary in an accident and health insurance policy procured by her husband, Jacob P. Becker, in the Kansas Casualty and Surety Company. He sustained bodily injuries from external, violent, and accidental means; namely, a gunshot wound, from which he died, and the company having denied liability, this action was brought. The company answered that the statements made by the insured in the application for the policy, which were warranted to be true, were in fact false, and that therefore the policy was void. The case was submitted to the court upon an agreed statement of facts, and it was decided that statements seven, nine and eleven in the application were untrue and would have had the effect of avoiding the policy, but for the provisions of chapter 226 of the Laws of 1907, which provides, in substance, that misrepresentations made in securing a life insurance policy shall not be deemed material unless the misrepresentations shall contribute to the injury or death of the insured. (Gen. Stat. 1915, § 5290.) The court held that this statute rendered the misrepresentations immaterial, as their falsity did not in any way contribute to the death of the insured, and hence judgment was given in favor of the plaintiff. Both parties appeal from the decision, the plaintiff contending that the agreed facts did not support the findings as to the falsity of representations made by the insured, and that the findings were not such as to render the policy void, and the defendant contending that the statute cited did not apply to policies of the kind in question and, even if applicable, did not make the representations immaterial.
The scope of the statute may be first considered. It is contended that in the enactment the legislature had in mind only strict life insurance contracts based upon medical examinations, as well as upon the statements and warranties of the insured. Attention is called to the title of the act which is "An act in relation to life insurance," etc., without mention of health or accident insurance. It will be observed that the act does not purport to be an amendment of the statute relating expressly to old-line life insurance. It is an independent act which contains nothing indicating that its provisions are to apply to any particular kind of life insurance. It provides:
"No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable."
The act is not only independent, but it is general in its terms and covers any policy on the lives of persons who are citizens of the state. In express terms, the policy provided for "indemnity for loss of life" by accidental means, and the fact that it also provided indemnity for accidental injuries not resulting in death does not take it out of the purview of the act. The defendant agreed to pay insurance on the lives of its policy-holders, and the policy is not only within the express terms of the act, but such insurance was manifestly within the contemplation of the legislature which passed it.
In view of the application of the act to such insurance, were the misrepresentations of the insured material and fatal to a recovery by the plaintiff? In the application of the insured he warranted that the statements made were true, and agreed that if any of those made in the schedule of warranties were untrue the policy would be void. Item number seven of the application was:
No exception followed this statement, but in the space left...
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