Farragher v. The Knights & Ladies of Security

• Decision Date: 08 July 1916
• Docket Number: 20,282
• Citation: 159 P. 3,98 Kan. 601
• Court: Kansas Supreme Court
• Parties: MARGARET FARRAGHER, Appellee, v. THE KNIGHTS & LADIES OF SECURITY, Appellant

159 P. 3

98 Kan. 601

MARGARET FARRAGHER, Appellee, v. THE KNIGHTS & LADIES OF SECURITY, Appellant

No. 20,282

Supreme Court of Kansas

July 8, 1916

Decided July, 1916.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSURANCE--Fraternal--Application--Circumcision--Physician--Consultation--No Intentional Concealment--Company Liable. In an action to recover upon a beneficiary certificate the defense was that the insured made false and fraudulent representations in his answers to questions asked by defendant's medical examiner, in which deceased stated that he had not consulted or been treated by any physician or surgeon during the previous five years for any illness, disease or injury, and had never undergone any surgical operation. Within a year previous he had been circumcised by a physician, who on later occasions dressed the wound, and who testified that, in his opinion, the insured was in perfect health at the time, and that the circumcision was performed for sanitary purposes. There was proof that the death of the insured resulted from a disease which had no relation to the circumcision, and physicians and surgeons testified that they did not regard circumcision as an operation. Defendant's medical examiner testified that if he had been informed of the fact he might not have considered it serious enough to mention in the application. Upon these facts and others stated in the opinion, the finding of the trial court that defendant failed to show the intentional suppression of any fact or circumstance which deceased naturally supposed would tend to influence defendant in passing upon his application, and that plaintiff is entitled to recover, will not be disturbed.

2. SAME--Application--Untruthful Answers--Policy--Absolutely Literal Interpretation Impossible--Bona Fides. It will not do to place an absolutely literal interpretation on the provisions in an application and policy of life insurance with respect to untruthful answers. There must not be evasion, fraud or suppression of facts; there must be absolute good faith in the conduct of the applicant; but where the evidence shows there has been no evasion, no purpose to conceal any fact which the applicant would naturally suppose was contemplated by the questions, and where the company issuing the policy could not have been prejudiced by the answers, and the death of the insured resulted from causes wholly unrelated to the matter about which the alleged untruthful answers were given, a defense based upon their untruth can not avail.

W. W. Brown, and James W. Reid, both of Parsons, for the appellant.

John Madden, and C. E. Cooper, both of Parsons, for the appellee.

OPINION

PORTER, J.

This is an action to recover upon a beneficiary certificate issued December 15, 1913, upon the life of James A. Farragher, plaintiff's son. At the time of his death, March 19, 1914, he was a member of the defendant order in good standing. The plaintiff recovered judgment and defendant appeals.

The defense is that in his application for the insurance James A. Farragher made certain representations which were false and fraudulent. To each of the following questions asked of him by the defendant's medical examiner, he answered "No."

"1. Have you ever consulted, or been treated, by any physician or surgeon, within the past five years for any illness, disease or injury? If so, give name and address of each and full particulars.

"2. Have you undergone any surgical operation, or have you any bodily malformation or weakness?"

The evidence shows that on February 21, 1913, James A. Farragher was circumcised by Dr. J. C. Cornell for balinitis, that is an inflammation of the foreskin indicating the presence of bacteria. On later days Doctor Cornell dressed the wound caused by the circumcision. Also, that on November 1, 1913, Farragher, who conducted a grocery and meat market, cut his finger and had Dr. Cornell treat the wound in order to prevent any danger of blood poisoning, although there was no evidence of blood poisoning. Doctor Cornell testified that the removal of the foreskin does not affect a person's general health, but usually makes it better; that he made an examination of Farragher at the time of the circumcision, and that, aside from...