Darling v. United Ben. Life Ins. Co.

• Decision Date: 25 January 1941
• Docket Number: 34991.
• Parties: DARLING v. UNITED BEN. LIFE INS. CO.
• Court: Kansas Supreme Court

109 P.2d 78

153 Kan. 75

DARLING v. UNITED BEN. LIFE INS. CO.

No. 34991.

Supreme Court of Kansas

January 25, 1941

Syllabus by the Court.

Insurer seeking to escape liability on life policy on ground of material representation by insured in application for reinstatement wherein insured stated that to best of his knowledge and belief he was in good health and that he had had no illness subsequent to date on which policy lapsed, had burden of showing that statement was not made in good faith.

In action to recover upon a life policy reinstated in reliance upon application wherein insured stated that to best of his knowledge and belief he was in good health and that he had had no illness subsequent to date on which policy lapsed evidence sustained trial court's finding of good faith on part of insured, and that no intent to defraud insurer was established.

1. A life insurance policy which had lapsed for non-payment of a premium was reinstated upon the furnishing of a health certificate signed by the insured, in which he stated that to the best of his knowledge and belief he was in good health and that he had had no illness subsequent to the date on which the policy lapsed, and in which he agreed that reinstatement should be based upon the good faith of his statement. It is held that the burden of showing that the statement was not made in good faith rested upon the insurer.

2. The record is examined in an action to recover upon an insurance policy reinstated under conditions stated, supra, and it is held that the trial court's finding of good faith on the part of the insured is supported by the evidence, and no error is found.

Appeal from District Court, Bourbon County; W. F. Jackson, Judge.

Action by Florence E. Darling against the United Benefit Life Insurance Company to enforce payment on a life insurance policy. Judgment for plaintiff, and defendant appeals.

P. E Nulton and R. L. Letton, both of Pittsburg, for appellant.

Harry Warren, Douglas Hudson, and Howard Hudson, all of Fort Scott for appellee.

HOCH Justice.

Appellee was the beneficiary under a life insurance policy which had been reinstated after having lapsed for non-payment of a premium. Upon the death of the insured the company refused payment on the ground of material misrepresentation by the insured in his application for reinstatement. Action to enforce payment was brought, the plaintiff prevailed and the defendant company appeals.

The question here is whether there was substantial, competent evidence to support the finding of the trial court that the insured acted in good faith in the representations made in his application for reinstatement.

On March 3, 1936, appellant issued to Ira C. Darling of Fort Scott, Kansas, a life insurance policy in the sum of $1,000; Florence E. Darling, mother of the insured, being named as beneficiary. The initial and the second quarterly premiums were paid, but the premium due on September 3 was not paid and the policy lapsed at the expiration of the grace period of thirty-one days on October 4, 1936. On November 17, 1936, Darling signed an application for reinstatement which reads as follows:

"I hereby certify that I am to the best of my knowledge and belief in good health and free from injury and have had no illness or injury since the premium became due (September 3, 1936), except as follows:

"None.

"I hereby agree that if the above numbered policy is reinstated by the company, such reinstatement shall be based upon the good faith of this statement, which is personally signed by me, and that the reinstatement, if granted, shall not take effect until all premiums in arrears, with interest, have been duly paid during my continued good health."

The trial court found that the health certificate was a blank form signed by Darling at his home in the presence of an agent of the company, and that it was filled out by the agent, in his own handwriting, after Darling had signed it. The premium due on September 3, 1936, was paid when the certificate was signed, was transmitted by the agent to the home office of the company, and on November 18 official receipt was given and the policy reinstated. The premium due on December 3 was paid on the last day of grace, Darling then being confined in the hospital. The insured died on March 11, 1937. Upon refusal to pay the policy, the company tendered to the administrator the two premium payments of November 17, 1936, and January 3, 1937, without interest added. Interest was also tendered (when the answer was filed in this action) in November, 1937.

Appellant contends that upon the facts disclosed subsequent to the death of the insured about four months after the reinstatement, the statements made by the insured in the application for reinstatement that he was in good health and had no illness subsequent to September 3, 1936, were not only untrue but could not have been made in good faith. At the time of the reinstatement on November 17, Darling had been off work since November 11. On November 24 he was taken acutely ill with heart trouble, went to the hospital, where he remained for sometime, and then returned to his home.

In its finding of fact number four the trial court stated the situation connected with Darling's lay-off from work on November 11 as follows: "On November 11, 1936, at around 1:00 o'clock P. M. of said day the said Ira C. Darling while at his work at the Frisco Railway shops in Fort Scott Kansas, complained of being ill but refused the proffer of medical attention or an ambulance at said time stating that he would be all right in a short while and asked to be relieved from his work and the said Ira C. Darling at said time walked across the railroad tracks in the Frisco yards while cars and trains were passing back and forth a distance of perhaps a quarter of a mile to his home. The appearance of Ira C. Darling on arriving at his home was that of having the appearance of having a bad cold in that he was sneezing. On November 11 or 12, 1936, and in the evening, Ira C. Darling in company with his mother, Florence E. Darling, the plaintiff herein, went to Dr. R. L. Gench, a physician in Fort Scott, Kansas, connected with and employed by the Newman and Young Clinic in said city, who were the Frisco company doctors, and at said time the said Dr. R. L. Gench took the blood pressure of Ira C. Darling but what that blood pressure may have been is not disclosed by the evidence. No stethoscope was applied and the evidence is silent as to any further examination made by Dr. Gench, save and except the taking of the blood pressure. At that time, Dr. R. L. Gench, advised Ira C. Darling to lay off for awhile until his cold got better. The said Ira C. Darling did not see any physician from and after said call upon Dr. R. L. Gench until after November 17, 1936. From November 11, 1936, up to and including November 17, 1936, the apparent physical appearance of Ira C. Darling was substantially the same as it had been for several years immediately preceding that time and the said Ira C. Darling was not confined to his bed...