Inter-Southern Life Ins. Co. v. Cochran

• Decision Date: 28 May 1935
• Citation: 259 Ky. 677,83 S.W.2d 11
• Parties: INTER-SOUTHERN LIFE INS. CO. v. COCHRAN.
• Court: Kentucky Court of Appeals

83 S.W.2d 11

259 Ky. 677

INTER-SOUTHERN LIFE INS. CO. v. COCHRAN.

Court of Appeals of Kentucky

May 28, 1935

Appeal from Circuit Court, McCracken County.

Action by Mattie Cochran against the Inter-Southern Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wheeler Wheeler & Shelbourne, of Paducah, for appellant.

W. A Berry, of Paducah, for appellee.

CREAL Commissioner.

Mrs Mattie Cochran, as beneficiary in a policy issued to her brother John Lenihan by the Inter-Southern Life Insurance Company insuring him against death or disability resulting directly, independently, and exclusively of all other causes from bodily injury effected solely through external, violent, and accidental means and sustained in certain ways or manner provided in the policy, has recovered judgment for the sum of $3,000, and the company is appealing.

The policy is one of those issued by the company through an agreement with the Courier-Journal to its regular readers served by authorized carriers or by mail. The policy provides indemnity for death or injuries sustained as above indicated "by the wrecking or disablement of any automobile or motor driven car *** not plying for public hire in which the insured is riding or driving. ***"

One of the standard provisions reads: "The insurance under this policy shall not cover any person under the age of ten years nor over the age of seventy years. Any premium paid to the Company for any period not covered by this policy will be returned upon request."

And under the heading of general provisions, among other things, it is provided: "No assignment of this policy shall be valid unless approved by an executive officer of the Company and an indorsement shall be made thereon."

In the petition it is alleged that insured died as the result of an injury sustained on August 2, 1931, by the wrecking or disablement of an automobile in which he was riding. It was further alleged, in substance, that plaintiff had been made and was beneficiary under the policy by a beneficiary designation signed by the insured making the policy payable to her, which beneficiary designation had been forwarded to the company and accepted, recognized, and agreed to by it.

The company filed a special demurrer to the petition on the ground that the policy provided, "Indemnity for loss of life provided in this policy shall be payable to the estate of the insured," and that under that provision none other than the personal representative of insured had a cause of action under the policy. It also filed a general demurrer.

In addition to a general denial of the allegations of the petition, the company by a second paragraph of its answer set out the quoted provisions of the policy respecting the age of the insured and alleged that John Lenihan was born on February 13, 1861, and became 70 years old and ceased to be entitled to benefits and indemnity under the policy on February 13, 1931; that it did not know insured had passed the age of 70 and otherwise would not have renewed his policy, and on request would have refunded such portion of the previous year's premium as had been paid from February 13, 1931, to July 13, 1931; that the estate of insured was entitled on request to the premium covering that period and the company was willing to and would reimburse the estate upon proper request. It pleaded and relied upon such quoted provisions as a complete bar and defense to the right of plaintiff or any one else to recover as sought in the petition.

In the third paragraph it set up and pleaded the provisions referred to in the special demurrer as a bar to plaintiff's right to prosecute that action in her own name or to recover under the policy sued on and alleged that the personal representative or administrator of the insured was a proper and necessary party plaintiff and the only person authorized to maintain an action on the policy.

In the fourth paragraph it set out the provisions of the policy, and alleged that insured's death did not result from injuries sustained in the way and manner provided in the policy, and that the automobile in which he was riding was not wrecked or disabled; that he died from physical infirmity and disease and not solely from bodily injuries effected through external, violent, or accidental means.

By reply, as amended, plaintiff traversed the affirmative allegations of the answer and set up the quoted provisions relating to the age of insured and alleged that if, as claimed by defendant, John Lenihan was born on February 13, 1861, defendant at all times knew his age and waived that provision of the contract and was estopped from pleading and relying upon same. The issues were completed by a traverse of the affirmative allegations of the reply as amended, and trial before a jury resulted in a verdict for plaintiff followed by the judgment appealed from.

The evidence so far as pertinent will be discussed in connection with the grounds relied on for reversal. The first ground argued by counsel for appellant is a challenge to the right of appellee to maintain this action. It is contended that under the quoted provisions of the policy it was necessary for her to establish: (a) A written assignment designating Mrs. Cochran as beneficiary; (b) the approval of that change by an executive officer of the company; (c) an indorsement upon the policy evidencing the change and approval. Attached to the policy is a "beneficiary designation" which, omitting the signature of insured and the witnesses thereto, reads:

"As the policy does not provide for a beneficiary other than the insured, if you desire that any individual receive this insurance, that is, be the beneficiary of the death benefit in your policy contract, please properly fill in and sign the form below in duplicate and attach one copy securely to the policy and send the other copy to the Inter-Southern Life Insurance Company Louisville, Kentucky.

"To whom it may concern:

"This is to certify that I, John Lenihan (Your name on this line) wish to make my Sister (State relationship to beneficiary such as wife, husband, sister, etc.) whose name is Mattie Cochran, wife of William T. Cochran (Fill in name of party you wish to leave insurance to) beneficiary in this Inter-Southern Life Insurance Company Travel Accident Pedestrian Insurance Policy Number ___ (Copy number of policy)

"Done at Paducah, McCracken County, Kentucky (Name of town or community, county and State)

"This 26 (Day) day of July (Month) 1929 (Year)

"F535 Signed ___.

"(Write your full name)"

Mrs. Elizabeth Martini, a close friend of Mrs. Cochran and John Lenihan, testified that she was present and saw John Lenihan fill in the blanks and sign this paper, and saw her husband sign it as a witness; that it was executed in duplicate and one copy was placed in a stamped envelope addressed to the Inter-Southern Life Insurance Company, Louisville, Ky. and that the envelope bore a return address; that she accompanied Mrs. Cochran to the post office and saw her post the letter. She was asked if Mr. Lenihan said where he got the papers, and replied, "No, I think the insurance man gave them to him. I know he said he had to sign this and make her beneficiary and one had to be mailed back."

The instructions at the head of the form filled out and attached to the policy as well as the instructions under the blanks to be filled in and the number at the foot clearly indicate that this form was furnished and sent out by the company.

Mrs Cochran also testified that she mailed the envelope containing a copy of the beneficiary designation; that it was properly addressed to appellant and bore the proper amount of postage and a return address. George M. Hill, Jr., who was employed in the legal department of appellant from 1929 until 1932, testified that he had access to any file or claim record necessary to his legal work, and that when notice of the death of John Lenihan was received, the files in...