Blades v. The Farmers and Bankers Life Insurance Company

• Decision Date: 10 May 1924
• Docket Number: 25,264
• Citation: 116 Kan. 120,225 P. 1082
• Parties: SAMUEL H. BLADES, OPAL J. BLADES, an infant, by SAMUEL H. BLADES, her next friend, and SAMUEL H. BLADES, as Administrator, etc., Appellees, v. THE FARMERS AND BANKERS LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

225 P. 1082

116 Kan. 120

SAMUEL H. BLADES, OPAL J. BLADES, an infant, by SAMUEL H. BLADES, her next friend, and SAMUEL H. BLADES, as Administrator, etc., Appellees, v. THE FARMERS AND BANKERS LIFE INSURANCE COMPANY, Appellant

No. 25,264

Supreme Court of Kansas

May 10, 1924

Decided January, 1924.

Appeal from Ottawa district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--Incorrect Statements Made in Application--Application Prepared by Insurance Agent--Oral Evidence Admissible to Show Questions Actually Asked and Answers Returned. In an action on an insurance policy where it is contended that the representations purported to have been made by the insured in an application for insurance prepared by a representative of the insurance company did not correctly state the questions asked and answers made by the applicant, oral evidence is admissible to show the questions actually asked and the answers given.

2. SAME--Distinction between Representations and Warranties in Application. Statements in an application for insurance are not to be construed as warranties unless made so by express agreement in clear and unequivocal language, and held, the statements in question were representations and not warranties.

3. SAME--Incorrect Representation Made by Insured in Good Faith Believing Them to Be True, Will Not Avoid the Policy. Representations of an insured that she was not pregnant made in good faith, believing that she was not in that condition, will not avoid the policy although it turned out that she was in fact pregnant when the application was made, if the applicant in good faith believed her answers to be true.

4. SAME--Evidence Sustains Findings and Verdict. The evidence examined and held to be sufficient to sustain the findings and verdict of the jury.

Z. C. Millikin, of Salina, and J. A. Brubacher, of Wichita, for the appellant.

F. D. Boyce, of Minneapolis, and E. G. Smith, of Washington, D. C., for the appellees.

OPINION

JOHNSTON, C. J.:

This was an action to recover upon a life insurance policy. The verdict and judgment was in favor of the plaintiff and defendant appeals.

On June 3, 1921, Mrs. Sadie M. Blades, a married woman, was solicited to take out a policy of insurance in the Farmers and Bankers Life Insurance Company. She signed an application for a policy in the amount of $ 2,000 payable to her estate. Her husband took out a policy on his life at the same time and both went to the office of the medical examiner on June 11, 1921, where the examination was made. On June 29, 1921, the medical examiner visited the Blades' home and required her to fill out an additional blank which it is said was required where the applicant was a married woman, whereupon he interrogated her and wrote down the answers for her. It appears she was taken to a hospital on October 13, 1921, where she underwent a surgical operation known as a Caesarean operation, when a dead child was removed from her body. At the end of about three weeks she appeared to have recovered from the operation and was returned to her home, but on November 7, 1921, she was taken suddenly ill and died about three hours later. The attending doctor gave embolism as the cause of her death. The plaintiff asked for a recovery upon the policy which was alleged to have been in full force and effect when she died.

In answer to plaintiffs' petition, the defendant alleged that in the application of the insured she represented that she was not pregnant, whereas she had been pregnant for about three months prior to the time the application was signed. In the medical examination she was asked the question: "How long is it since you have consulted or have had the care of a physician?" and the answer written was, "None since confinement." The confinement referred to occurred about two years before the application for insurance was made. Testimony was offered that this was not the question asked by the medical examiner, but that the question asked was: "If she had had a doctor for anything serious since the last child was born?" and she answered "No." The defendant with its answer filed a cross-petition asking for the cancellation of the policy because of untrue answers given in the preliminary medical examination. The case was submitted to a jury which found as to the time when she consulted or had had the care of a physician that she had talked to a physician about her condition on May 30, 1921, when she told the doctor that she had missed a menstrual period but was menstruating on that day and wondered if she could be pregnant, and that the doctor who made no examination told her to rest and await developments and that if pregnant she would probably be confined about November of that year.

There was a finding that she was pregnant on June 3, 1921, but that she did not know that she was pregnant when she made her application for insurance and did not knowingly and falsely misrepresent her condition of pregnancy for the purpose of defrauding the insurance company. It was also found that she did not believe or have cause or reason to believe that she was or might then be pregnant, and did not have reason to believe so until she felt motion.

There was a further finding that when the policy was applied for and issued the company did not knowingly insure the life of pregnant women.

After finding as to the death and its cause the jury further found that they did not know whether the condition of pregnancy or the operation contributed to the result that caused her death, and did not know that phlebitis following the operation to deliver the child and producing embolism caused her death, but that her death was caused by embolism.

On the request of the defendant the court made findings of fact of its own on the cancellation branch of the case which mainly corresponded with those made by the jury. The court found that when the original application reached the home office of the defendant and the examination disclosed that the applicant was a married woman, a special blank to be filled in was sent to the local medical examiner with instructions to have the questions therein answered and signed as a part of the application. It was found that at the time the application was signed the insurance company did not knowingly insure the lives of pregnant women, and that over the signature of the applicant was a declaration that the statements and answers were true, full and complete, whether written by her own hand or not, and that they were offered as a part of the application for insurance. There was a recitation that the court had admitted over objection the form of the question asked by the medical examiner, to wit: "If she had had a doctor for anything serious since the last child was born?" and the answer "no," given by Mrs. Blades.

There was a further finding that if the application had shown that the applicant was pregnant or if from representations made by her in the application, the defendant had had any reason for believing that she was pregnant or she had consulted a doctor to ascertain if she was pregnant, the policy would not have been issued. The conclusion of the court was that defendant was not entitled to a cancellation of the policy.

The findings of the jury were approved by the court and judgment entered upon the verdict. There is no objection to the findings of fact by the court, but its conclusion is challenged.

The first assignment of error is the admission in evidence of oral testimony as to the question asked and answered in relation to the time the insured had consulted a physician. The application was prepared by the medical examiner of the company, he asking the questions and writing down the answers of the insured. As already shown the question was: "How long is it since you consulted or have had the care of a physician?" The answer written was: "None, since confinement." According to the testimony the question asked was: "If she had had a doctor for anything serious since her last child was born?" and that the answer was "no." She had talked with a physician shortly before the policy was issued as already related. If her interview with the doctor may be regarded as a consultation and the question and answer material in the case, still the evidence cannot be held to be incompetent. The defendant alleged that the question was asked in the form stated and was answered untruthfully. The plaintiff denied the averment and specifically alleged that the insured had never said or answered that she had not consulted a physician. It was the duty of the representative of the company who prepared the application and contract to write correctly the questions and answers as they were propounded and given. The insured had a right to rely upon the assumption that the answers made by her were correctly written, and where it is not done, it is competent for the plaintiff to show what representations were actually made. In a case where a question arose as to the admission of oral evidence as to representations made by the insured when the application was prepared, it being contended that it would overthrow a written contract, it is said: "This court has decided numerous times that such evidence is admissible." (Broady v. Fire Association, 94 Kan. 245, 146 P. 343). Some of the cases recognizing that such evidence is admissible and has been considered are: Insurance Co. v. Bank, 60 Kan. 630, 57 P. 524; Insurance Co. v. Darrin, 80 Kan. 578, 103 P. 87; Pfiester v. Insurance Co., 85 Kan. 97, 116 P. 245; Farragher v. Knights and Ladies, 98 Kan. 601, 159 P. 3; Mercantile Co. v. Insurance Co., 101 Kan. 522, 168 P. 323; Moreland v. Security Benefit Association, 112 Kan. 587, 212 P. 93.

The principal contention is...