Continental Cas. Co. v. Waters

• Decision Date: 06 December 1906
• Citation: 97 S.W. 1103
• Parties: CONTINENTAL CASUALTY CO. v. WATERS.
• Court: Kentucky Court of Appeals

97 S.W. 1103

CONTINENTAL CASUALTY CO. v. WATERS.

Court of Appeals of Kentucky.

December 6, 1906

Appeal from Circuit Court, Lincoln County.

"Not to be officially reported."

Action by Sarah Waters against the Continental Casualty Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. N Saunders, for appellant.

G. M Davidson and P. M. McRoberts, for appellee.

BARKER J.

This action was instituted in the Lincoln circuit court by Sarah Waters to recover of the Continental Casualty Company a balance due her as beneficiary under an accident policy on the life of her son Waco Waters. The petition sets forth all of the necessary allegations for a judgment on the policy for the full amount of the insurance due, and then alleges that in November, 1904, the insurance company sent an agent to her home, who falsely and fraudulently represented to her that the policy on her son's life was forfeited and void, and that she could not recover anything thereunder, but proposed to her that if she would release the company from all claim under it he would give her $300 in cash. She states that she is a widow, old, and entirely destitute of education, and with no one to advise her as to her rights in the premises that believing and relying upon the false and fraudulent representations of the agent, she accepted his proposition received $300 in cash, and executed and delivered to him a release of the company from any further liability under the policy. The policy was not filed with the petition, it having been surrendered up to the company, but it was alleged that notice was given the company of the death of Waco Waters within 30 days after his death. We very seriously doubt whether the answer of the company presents any issue of fact whatever; certainly it does not traverse any material allegation of the petition. It admits the issuance of the policy, its terms, the allegation that it was in full force and effect at the time of the death of the insured, that all the premiums were fully paid, that the death of Waco Waters was caused by a wreck of the engine upon which he was fireman, that the amount named in the policy was $1,000, and that only $300 of this sum had ever been paid to the beneficiary. Construing the denials of the answer as favorably to the defendant as the language used will bear, while admitting that it received notice of the death of the insured within 30 days thereafter, it denies that it was liable under the policy unless the proof of death was furnished, on the blanks supplied by the company, within 30 days after the death of the insured.

The allegation of the petition, that within 30 days after the death of the insured proof of his death was furnished the company, is met by this denial: "Defendant denies that proof of the death of said Waco Waters was within 30 days thereafter furnished to, or received by it, as required under the terms of said policy." The language of the policy is not set out, and the allegation that the proof was not furnished according to its terms is a mere conclusion of the pleader. The answer then recites that on the 9th day of June 1904, it furnished to plaintiff (appellee) blanks for proving her claim, based upon the death of her son, and notified her that it required proof of the proceedings at the coroner's inquest; that this was not furnished until the 28th day of September, 1904, more than three months after the death of the insured. Then follows this allegation: "Defendant says that upon the expiration of 30 days from the death of said Waco Waters, plaintiff having failed to furnish said proof of said death as directed by it and required by said policy of insurance as conditions precedent to a recovery thereunder, the defendant was under said contract and policy of insurance, by the express terms thereof, discharged from any and all liability thereunder, and by reason thereof, and the defendant then marked the said claim under said policy for the loss of life of said Waco Waters, forfeited for failure to furnish said proofs, and struck same from the list of defendant's liabilities." So that the...