Germania Life Ins. Co. v. Lauer

• Citation: 97 S.W. 363,123 Ky. 727
• Parties: GERMANIA LIFE INS. CO. OF NEW YORK v. LAUER.
• Decision Date: 14 November 1906
• Court: Court of Appeals of Kentucky

97 S.W. 363

123 Ky. 727

GERMANIA LIFE INS. CO. OF NEW YORK v. LAUER.

Court of Appeals of Kentucky.

November 14, 1906

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

"To be officially reported."

Action by Amelia Lauer against the Germania Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

O'Neal & O'Neal, for appellant.

Norton L. Goldsmith and Benjamin F. Washer, for appellee.

CARROLL C.

This appeal is prosecuted from a judgment in favor of appellee, as widow of Charles Lauer, against appellant, for $1,000, the amount of a life insurance policy issued by appellant to Charles Lauer, on March 23, 1903. Payment of the policy was resisted by appellant chiefly upon the ground that the first premium was paid, when the insured was dangerously ill, to its agent, who was ignorant of his condition and believed him to be in sound health; that the payment was made by the brother of insured, who had knowledge of his serious illness but concealed this fact from the agent who accepted the premium; and that the stipulation in the policy that it should "not take effect until it shall have been delivered and accepted and the first premium paid during the continued good health of the insured" was not waived, and therefore the policy did not become effective during the life of the insured.

The facts of the case are substantially as follows: H. P. Reiger manager of appellant for the states of Kentucky and Tennessee, induced the insured to take the insurance after he had passed a satisfactory examination. There is some question as to whether or not the policy was accepted by Charles Lauer, but we do not deem it necessary to consider this feature of the case. The policy was delivered to the insured on March 23, 1903, and about a week thereafter he was taken sick and confined to his house until his death on April 22 1903. A few days after the policy was delivered Reiger was also taken sick, and did not leave his home until April 22, 1903, on which day he was called over the telephone by Henry Lauer, a brother of the insured, who requested him to stop at his place of business. About noon on this day Reiger called at Henry Lauer's place of business, and was paid by him in cash the full amount of the first premium, which he accepted. A few minutes after the premium had been paid, and while Reiger was yet in the place of Henry Lauer, a telephone message was received stating that Charles Lauer had just died. There is sharp conflict in the evidence as to what occurred at the time and immediately before the premium was paid. Reiger testifies that he did not know at the time he accepted the premium that the insured was sick at all, and that if he had known it he would not have accepted the premium. Henry Lauer and other witnesses testified that Reiger was informed by Henry Lauer before he accepted the premium that the insured was at the time seriously ill. Reiger was that character of agent who had the right to waive the condition in the policy providing that it should not become effectual unless the first premium was paid during the continued good health of the insured (Washington L. Ins. Co. v. Menefee's Ex'r, 107 Ky. 244, 53 S.W. 260; Connecticut Indemnity Ass'n v. Grogan, 52 S.W. 959, 21 Ky. Law Rep. 717); and, conceding...