Kansas Protective Union v. Gardner

• Decision Date: 05 April 1889
• Citation: 41 Kan. 397,21 P. 233
• Parties: THE KANSAS PROTECTIVE UNION v. ISAAC A. GARDNER
• Court: Kansas Supreme Court

21 P. 233

41 Kan. 397

THE KANSAS PROTECTIVE UNION v. ISAAC A. GARDNER

Supreme Court of Kansas

April 5, 1889

Error from Rice District Court.

ACTION to recover upon a life insurance policy. Trial at the September term, 1885, and judgment for plaintiff Gardner for $ 2,000. The defendant Union brings the case here. The opinion states the material facts.

Judgment affirmed.

Vandeveer & Martin, and Jetmore & Son, for plaintiff in error.

Brinckerhoff White & Brinckerhoff, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This action was brought by Isaac A. Gardner against the Kansas Protective Union on a policy of insurance, issued in the form of a certificate of membership, on the life of Elizabeth A. Gardner, and payable to her husband, Isaac A. Gardner. The application for insurance, or membership, was made on the 23d day of June, 1884; on that day the applicant paid E. H. Baird, the agent of the Protective Union, eight dollars; the policy or certificate of membership was issued on the 16th day of July, but was not delivered until July 18th or 20th; Mrs. Elizabeth A. Gardner died on the 25th day of July, 1884; and on the 21st day of August, 1884, proofs of her death were made out and presented to the Protective Union. This action was commenced on the 24th day of June, 1885--about eleven months after the death of the assured; and the petition declared the policy or certificate as a simple contract of insurance, and asked judgment upon the policy or certificate for the amount named therein. The answer contained a general denial, and also set up a provision of the policy or certificate, by which it was provided that if there should be any concealment, misrepresentations or false statements made in the application on which the policy or certificate issued, the policy or certificate should be null and void. The answer further alleged that at the time of' her application Mrs. Gardner had a violent cough, defective lungs, and was afflicted with the disease of consumption, and that she concealed all of this from the insurance company and its agents.

The plaintiff in reply denied the allegations of the answer, and alleged that his wife at the time of her application had concealed nothing, and made no false representations; but that a short time prior to her application she had given birth to a child; that she had not fully recovered her general strength; that her confinement and sickness were mentioned and talked about to E. H. Baird, the agent; that he informed her that a confinement, or giving birth to a child was not considered a sickness or disease which could in any manner affect her application or insurance; and therefore, on account of the advice and statements of the agent, her answers contained in the application did not refer to her confinement or sickness in giving birth to her child. The application upon which the policy or certificate was issued, contained, among other things, the following questions and answers:

"Q. Are you now in sound health? A. Yes.

"Q. Are you subject to cough, difficulty in breathing or palpitation? A. No.

"Q. Have you ever had hemorrhage of the lungs or spitting of blood? A. No.

"Q. Have you ever had, or have you now, consumption? A. No.

"Q. Are you now subject to or affected by any other infirmity? A. No.

"Q. Have you been attended by a physician during the last five years? A. No."

The case was tried by the court with a jury; a general verdict was rendered in favor of the plaintiff for $ 2,000; the jury also found and returned special findings of fact. Subsequently, the trial court rendered judgment upon the verdict and findings. The Protective Union, defendant below, excepted, and brings the case here.

I. The policy or certificate contains the following provisions:

"The said Union does hereby promise and agree to pay, at its office, in the city of Topeka, in lawful money of the United States, the sum of two thousand dollars, to Isaac A. Gardner or his executors, administrators, or assigns, within sixty days from the close of the quarter in which satisfactory proofs of the death, during the continuance of this certificate, of the above-named member, are received. It is provided, however, that the sum to be thus paid is conditioned upon the assessment made therefor, and shall in no case exceed seventy-five per centum of the amount received thereon."

Under these provisions it is contended that the policy or certificate sued on does not permit recovery of any sum when loss occurs except by assessments to be made upon the members, and the sum to be recovered in no case to exceed seventy-five per cent. of the amount received on the assessments. It is therefore urged that the plaintiff must aver and prove the number of members belonging to the Protective Union at the death of the assured, the amount of the assessments made on the members therefor, and also what seventy-five per cent. of the assessments received would amount to. This objection to any recovery was presented, and decided adversely in Protective Union v. Whitt, 36 Kan. 760. The policy or certificate required the Union to pay the amount due thereon within sixty days from the close of the quarter in which proofs of the death of the assured were received. The close of the quarter after the reception of' proofs of the death was September 1, 1884, and by the terms of the policy the amount thereon became due within sixty days after September 1, 1884. This action was not brought until on the 24th of June, 1885. The answer contained no allegations as to want of funds, or as to what the assessments if made would have realized. It is not contended that any assessment has ever been...