Illinois Life Ins. Co. v. De Lang

• Decision Date: 08 February 1907
• Parties: ILLINOIS LIFE INS. CO. v. DE LANG.
• Court: Kentucky Court of Appeals

99 S.W. 616

124 Ky. 569

ILLINOIS LIFE INS. CO. v. DE LANG.

Court of Appeals of Kentucky.

February 8, 1907

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

"To be officially reported."

Action by Felix De Lang against the Illinois Life Insurance Company. Judgment for plaintiff. Defendant appeals. Reversed, and remanded for new trial.

Kohn Baird & Spindle, Long & Price, and Stanley E. Sloss, for appellant.

George Weissinger Smith and O'Neal & O'Neal, for appellee.

HOBSON J.

On November 16, 1903, Louis C. De Lang applied to the Illinois Life Insurance Company for a policy of insurance on his life in the sum of $2,000, payable to his father, Felix V. De Lang. The application was accepted, and the policy issued on November 28, 1903, the first premium being then paid. The insured died on October 22, 1904, and, the company having declined to pay the amount of the policy, this action was instituted by Felix V. De Lang to recover on it. The company defended upon the ground that certain statements of the insured in his application were untrue, and that it was thereby induced to issue the policy, when, if the truth had been stated, the application would have been rejected. The case was tried before a jury, who found for the plaintiff and, judgment having been entered upon the verdict, the insurance company appeals.

So much of the application as is relied on to defeat a recovery on the policy is as follows: "(16) Except as mentioned above, have you or any of your grandparents, uncles, aunts parents, brothers or sisters ever had consumption or tuberculosis in any form? Ans. No. * * * (22) Has change of residence, occupation or climate ever been sought or advised for the benefit of your health? Ans. No. * * * (25) Has there been more than five pounds variation in your weight the last two years? Ans. No. * * * (29) Have you ever used spirituous or malt liquors freely or to excess? Ans. No. (30) What is your practice, as regards the use of spirituous or malt liquors? State amount consumed daily? Ans. I do not exceed two glasses drinks of spirituous liquors any day, beer daily. I do not exceed none drinks of wine or malt liquors any day. I do not average more than three drinks alcoholic liquors daily, whisky. * * * (32) Are you usually in good health? Ans. Yes. (33) Are you now in good health? Ans. Yes. (34) Have you ever had spitting of blood, habitual cough, or expectoration or shortness of breath? Ans. No. * * * (65) Have you ever had an obstinate cough? Ans. No. * * * (93) What ailments, diseases or accidents have you had since childhood not previously herein fully explained, including any of the above answered yes? Ans. Name of disease, measles and mumps. Approximate dates, when a child. Name of disease, typhoid fever. Number of attacks, one. Approximate dates, 1883. Duration, two months. Was recovery complete? Yes. Full name of physician consulted, Dr. Walling, deceased, city. Two years ago had one attack of external piles. I only used an ointment procured from drug store. I have had no recurrence of piles since. (93 1/2) Full name of physician last consulted by you? Ans. Dr. Walling, typhoid, 1883. (94) Have you at the present time, or have you ever had, any disorder, sickness, disease, weakness or disability of any kind not herein mentioned and fully explained? Ans. None."

The defendant introduced proof showing that in the year 1902 the insured lived in Chicago, and toward the latter part of the year was in very bad health; that he lost weight, had an habitual cough, shortness of breath, and night sweats; that he could not walk erect, was very haggard looking; that his feet were swollen; that he said that he had consumption, and that he could not walk upstairs to deliver goods. It also proved by Dr. Pickard that on December 23, 1902, the insured consulted him professionally, stating that he was short of breath; that he was weak; that his appetite was poor; that he had been losing flesh, and that it was difficult for him to walk upstairs. The physician also stated that he then examined him, after having him take off his shirts; that his chest did not dilate and contract as a healthy person; and that, by sounding on the chest and by use of the stethescope he concluded that the patient had consumption. His statement as to what he told the patient is in these words: "I told him that he was a man that looked death in the face; that it was coming to us all, and would soon come to him; that he had consumption, and I thought he was the one to know it; that he had, I thought, a fighting chance, but if he lived it would be because he fought well and under good management, but that his chances were very poor. * * * He spoke about a change of climate, and seemed quite anxious. He was predisposed to the idea of a change of climate. He said that his circumstances were not such that he could be properly housed and cared for in Chicago climate, and he would like to go south, and, perhaps, probably, to New Mexico. He asked me what I thought about New Mexico. I told him a great many physicans advised Albuquerque. He told me that, if he could get an appointment as a local preacher or temperance lecturer, in that way he could get transportation cheaper, and he would go to the southwest for his health." He also testified that he subsequently treated him for the next six weeks, and that he left Chicago about the first of February, and came to Louisville. He did not stay long in Louisville, but went with his wife and child to Albuquerque, N.M. The defendant showed that he was examined by a physican in Albuquerque when he reached there, who also testified...