Jackson v. National Life & Acc. Ins. Co.

• Decision Date: 10 June 1939
• Docket Number: 34269.
• Citation: 90 P.2d 1097,150 Kan. 86
• Parties: JACKSON v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Kansas Supreme Court

90 P.2d 1097

150 Kan. 86

JACKSON v. NATIONAL LIFE & ACCIDENT INS. CO.

No. 34269.

Supreme Court of Kansas

June 10, 1939

Rehearing Denied July 8, 1939.

Syllabus by the Court.

That insured had visited a chiropractor and had been treated for gastritis prior to applying for life policy did not render her representations in application that she had not consulted a physician for any ailment or disease false and fraudulent so as to preclude recovery on policy upon death of insured of myocarditis. Gen.St.1935, 40-418.

In action on life policy issued to insured who died of myocarditis about six months after issuance of policy whether insured, who had been treated for gastritis prior to issuance of policy, was in good health at time of issuance thereof held for jury.

In an action on a life insurance policy the record is examined and it is held that there was sufficient evidence to require the question of the health of the insured at the time the policy was delivered to be submitted to the jury, and that there was evidence to support the answers of the jury to the special questions, except for one answer, which was set aside by the trial court.

Appeal from District Court, Shawnee County, Division No. 3; Otis E Hungate, Judge.

Action by James W. Jackson against the National Life & Accident Insurance Company to recover on a life insurance policy wherein the defendant filed a cross-petition. Judgment for plaintiff, and the defendant appeals.

Judgment affirmed.

Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson and Ralph W. Oman, all of Topeka, for appellant.

Charles Rooney and John W. Lewis, both of Topeka, for appellee.

SMITH Justice.

This was an action on a life insurance policy. Judgment was for plaintiff. Defendant appeals.

The petition alleged the existence and addresses of the parties; that defendant issued the policy in the amount of $1,000 on the life of deceased on February 3, 1937; that plaintiff was named beneficiary in the policy; that the insured died of natural causes on August 12, 1937; that proof of death had been furnished and demand for payment made and refused. Judgment was asked for the face of the policy.

In its answer the defendant admitted the issuance of the policy, the death of insured, the demand for payment, its refusal and alleged that defendant had tendered to plaintiff a payment of three quarterly premiums with interest and that this tender had been refused by plaintiff. The answer further alleged that defendant denied any liability under the policy because of fraudulent answers on the part of insured to certain questions asked her at the time she made application for the policy; that insured knew at the time she made application for the policy and at the time of its delivery to her that she had made fraudulent answers in her application; that defendant did not know that these answers were false, and would not have issued the policy had it been informed of the fraud on the part of insured when the application was executed; that these fraudulent answers were made with intent to defraud the defendant. The premium paid was tendered into court.

Defendant also filed a cross petition, in which it alleged that it issued the policy, relying solely on the answers and representations made by insured at the time she made the application; that defendant delivered the policy still believing these answers to be true; that after issuing the policy and delivering it and after the death of insured defendant learned that the insured had made false and fraudulent answers to questions propounded to her; that after having learned of the fraud on the part of insured defendant denied liability on the policy and tendered to plaintiff the premium paid; that the fraud practiced on defendant by the insured made the policy void at its inception and it was so considered by defendant at the time settlement was refused. The cross petition then alleged that for the purpose of inducing the defendant to issue the policy the insured made, among other statements, the following: "18. Have you ever had any ailment or disease of:

"(A)--Brain or nervous system? No.

"(B)--Heart or lungs? No.

"(F)--Have you ever consulted a physician for any ailment or disease not included above? No."

"23. State names and addresses of physicians you have ever consulted and give the occasion by reference to question numbers and letters above. None."

"26. I hereby agree and declare on my own behalf and in behalf of any person who may have or claim any interest in any policy issued herein:

"(1) That each of the statements contained herein is full, complete, true, and without exception, unless such exception is noted, and made as inducements to the execution of a policy of life insurance for which this is an application.

"(2) That the proposed contract shall not be effective until the policy has been issued and the first premium actually paid and accepted by the company and this policy has been delivered to and accepted by me in my lifetime, and while in good health, ***"

"29. Signature of the person applying for insurance:"

The cross petition further alleged that insured knew at the time of her application for the policy that she had for some time suffered an ailment of the heart and the stomach; that she knew of her own knowledge that for sixteen months or more prior to January 26, 1937, when the application was executed by her that Dr. E. W. Irish had on numerous occasions treated her for attacks of stomach trouble and had advised her that she had an ailment of the heart; that insured knew at the time the policy was delivered to her that she was not in good health; that with this knowledge she answered the questions as quoted in the application and accepted delivery of the policy; that these answers were made with intent to deceive the defendant and the policy would not have been issued had defendant known the truth; that the answers to the questions were false and fraudulent representations and the acceptance by insured of the policy when she was not in good health made the policy void at its inception. The prayer was that the policy be rescinded.

For a reply the plaintiff filed a general denial and for an answer to the cross petition plaintiff denied that the insured made false answers in her application and denied that insured had ever been advised that she had a heart ailment prior to January 26, 1937, and denied that she had consulted a physician and concealed it.

The cause was submitted to a jury, which returned a verdict for the plaintiff for the face value of the policy. Special questions were asked and answered, as follows:

"1. Do you find that Clara C. Jackson, the insured, prior to January 26, 1937, the date of the medical examination for the insurance policy involved in this suit, consulted with E. W. Irish as to her physical condition? Answer: No.

"2. If your answer to the above question is in the affirmative, then state on what dates she had such consultations, or the period of time over which they were had. Answer: --

"3. Did Clara C. Jackson tell Dr. James G. Stewart, on August 10, 1937, that she had had trouble with her heart for several years? Answer: No.

"4. Do you find that Clara C. Jackson was in good health at the time of the delivery of the policy in question, to-wit, February 3, 1937? Answer: Yes.

"5. Do you find that Clara C. Jackson, the insured, in April of 1936 and September of 1936, received chiropractic treatments? Answer: Yes.

A motion to set aside certain of these answers because they were contrary to and not supported by the evidence was sustained as to question number one and overruled as to the others. A motion by the defendant for judgment...