General Acc. Life & Fire Assur. Corp. v. Richardson

• Decision Date: 19 February 1914
• Citation: 157 Ky. 503,163 S.W. 482
• Parties: GENERAL ACCIDENT, LIFE & FIRE ASSUR. CORPORATION, Ltd., v. RICHARDSON.
• Court: Kentucky Court of Appeals

163 S.W. 482

157 Ky. 503

GENERAL ACCIDENT, LIFE & FIRE ASSUR. CORPORATION, Ltd., v. RICHARDSON.

Court of Appeals of Kentucky.

February 19, 1914

Appeal from Circuit Court, Warren County.

Action by Zelmer E. Richardson against the General Accident, Life &amp Fire Assurance Corporation, Limited. From a judgment for plaintiff, defendant appeals. Affirmed.

Guy H Herdman and W. R. Gardner, both of Bowling Green, for appellant.

Sims &amp Rodes, of Bowling Green, for appellee.

HANNAH J.

This is an appeal from a judgment of the Warren circuit court in favor of appellee, Zelmer E. Richardson, against appellant, General Accident, Life & Fire Assurance Corporation, Limited, in the sum of $2,400, for 24 months' total disability under the following clause of an accident insurance policy: "At the rate of one hundred dollars per month for a period not exceeding twenty-four consecutive months, against total loss of time resulting directly or independently of all other causes, from bodily injuries effected through external, violent, and accidental means, and which wholly and continuously, from date of accident, disables and prevents the assured from performing every duty pertaining to any business or occupation."

The plaintiff claimed that he was accidentally injured on the night of December 30, 1910, at Bowling Green, about 10 p. m., by falling in a passenger coach from which he was preparing to alight at the depot, and a heavy typewriter falling upon his back or buttock, to which weight and jar was added that of a fellow passenger who fell on the typewriter while it was upon plaintiff; and that the severe injuries thereby sustained directly produced the total disability upon which his claim was based.

The insurance company defended upon the ground (1) that the plaintiff did not receive the injury alleged by him; (2) that the disability complained of did not result, directly or independently of all other causes, from bodily injuries effected through external, violent, and accidental means, nor was the plaintiff wholly disabled therefrom, but that his disability was caused wholly or in part, directly and indirectly, by his previous diseased condition, that at the time of the alleged injury, and for five years prior thereto, plaintiff was suffering with tuberculosis of the bones, and that this disease, and not the injury, caused the disability complained of; and (3) upon the ground of false and material representations contained in the application upon which the contract of insurance was issued.

The misrepresentations charged were made in answer to questions in said application, as follows: "I have not had any medical or surgical treatment during the past five years except as herein stated: Bruise on ribs in 1905. Minor operation for bruise on hip in 1907. Recovery complete. I am not subject to, do not now have, nor have I ever had fits of any kind, vertigo, hernia, paralysis, rheumatism, sciatica, lumbago, nor any disease or infirmity, mental, physical, nervous, venereal, chronic, or inherited, except as herein stated: No exceptions."

1. Appellant first insists that it was shown by uncontradicted evidence that these representations were false and material, and that upon this ground the court erred in denying its motion for peremptory instruction.

Upon this issue, plaintiff testified, in substance, that in June, 1905, while riding a horse 16 hands high, he was thrown to the ground, receiving an injury to one of his ribs; that six weeks thereafter he consulted Dr. Cain, who examined the bruised place, pronounced it a tumor, performed an operation, opening and draining the place, and discharged him from the hospital in four days. He further testified that in November of that same year this injury to this rib gave him some further trouble; that he thereupon consulted Dr. F. D. Cartwright, who dressed and attended to it occasionally during a period of four or five months. Later he went to Dr. Blackburn, who cut into the rib, scraped the place, and in the course of six days thereafter it was entirely healed and well, and gave him no further trouble. Plaintiff further testified that in October, 1906, while riding in a wagon, he received a severe bruise on his left hip; that, although this gave him considerable pain, he went to Florida to teach school, but while there his suffering became so acute that he was compelled to consult a physician, who opened the place, and treated it. He returned to Bowling Green in the spring of 1907, and thereupon again placed himself under the care of Dr. Blackburn, who treated the hip until about June 10, 1908, but did not discharge him as entirely cured until May, 1909. Thereafter he gradually regained his shattered strength, vigor, and weight. He testified that in November, 1910, when the policy was issued, and on December 30, 1910, when he received the injury upon which this action is based, he was sound and well, and as strong as he ever was, weighed 195 pounds, and had had no illness from June, 1907, until he was so injured.

Upon this testimony of the plaintiff himself, the appellant contends that the falsity and materiality of the representations heretofore mentioned have been made manifest.

But it was also in evidence that appellee, while in North Carolina, in November, 1907, was solicited by appellant's agent, and that there the application for this insurance was executed. And the agent who effected the insurance testified that he wrote the answers in the application literally as given to him by appellee; while appellee testified that he informed the agent of the injuries and treatment heretofore mentioned as fully as he had testified concerning them upon the trial of the case.

The rule in this state is that, where an insurance agent, with full knowledge of the facts, writes in the application untrue answers to the questions therein propounded, the company is estopped from asserting or relying upon such misrepresentations in the absence of fraud or bad faith upon the part of the insured.

Under the state of facts here presented, it was for the jury to determine whether appellee made full disclosure to the appellant's agent, and whether, without fraud or bad faith upon the part of appellee, the agent of the appellant with such knowledge of the facts, wrote...