Brisou v. Metropolitan Life Ins. Co.

• Decision Date: 02 February 1909
• Parties: BRISOU v. METROPOLITAN LIFE INS.
• Court: Kentucky Court of Appeals

115 S.W. 785

BRISOU v. METROPOLITAN LIFE INS.

Court of Appeals of Kentucky.

February 2, 1909

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"Not to be officially reported."

Action by William M. Brisou against the Metropolitan Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Marion W. Ripy, Bennett H. Young, and E. C. Waide, for appellant.

Eugene Attkisson, for appellee.

CARROLL J.

On July 12, 1904, Kate Brisou, the wife of appellant, applied to the appellee insurance company for a policy of $500 upon her life. The company accepted the application, issued the policy, and delivered it to the insured on July 22, 1904; her husband, the appellant, being named as the beneficiary. Mrs Brisou died on October 4, 1904, and, the company declining to pay the policy upon the ground that it was obtained through fraud and misrepresentation on the part of the insured, this action was instituted to recover the amount of it. Upon the conclusion of the evidence the trial judge directed a verdict for the company. There had been a previous trial, and a judgment against the company which was set aside by the trial court.

It is insisted for appellant that the court erred in setting aside the first verdict, and in peremptorily instructing the jury to return a verdict for appellee. We think the court was correct in both rulings, and will proceed to give the reasons for our conclusion. In her application for insurance the insured stated (1) that she had never had cancer or other tumor; (2) that she was at the time in sound health; (3) that she had not been under the care of a physician within two years prior to that date; (4) that she had never been under any treatment in any dispensary or hospital. The uncontradicted evidence is that Mrs. Brisou, in April, 1904 was operated on for cancer of the womb, in an aggravated and incurable form, by Drs. Frank and Brandis, and that she was under their care in St. Joseph's Infirmary, in Louisville, Ky. from April 6, 1904, to April 19, 1904, and was during that time informed by them that she had cancer. It therefore conclusively appears that the statements made by the insured that she never had cancer, that she had not been under the care of a physician within two years prior to the date of the application, and that she had never been under treatment in a dispensary or hospital, were each and all untrue. Whatever may be said as to the other statements, there cannot be two opinions concerning the fact that the statement that she had never had a cancer was material to the risk; and it is scarcely open to doubt that, if the company had notice of this fact, it would have refused to issue the policy. On behalf of appellant there was evidence, including...