Klein v. The Farmers and Bankers Life Insurance Company

• Decision Date: 11 April 1931
• Docket Number: 29,713
• Citation: 132 Kan. 748,297 P. 730
• Parties: LEOTA BLANCHE KLEIN, Appellant, v. THE FARMERS AND BANKERS LIFE INSURANCE COMPANY, Appellee
• Court: Kansas Supreme Court

297 P. 730

132 Kan. 748

LEOTA BLANCHE KLEIN, Appellant, v. THE FARMERS AND BANKERS LIFE INSURANCE COMPANY, Appellee

No. 29,713

Supreme Court of Kansas

April 11, 1931

Decided January, 1931.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--Policy Contract--Delivery Conditioned Upon Good Health and Payment of Premium. In an application for insurance where the applicant agreed that no liability should attach to the company until the first premium is paid and the policy is delivered to and received by the applicant while in good health, and where the applicant was first passed as insurable, but a delivery of the policy was refused because the applicant was then sick and suffering from a serious disease and also that a required premium had not been paid the insurance company was justified in resisting payment of the insurance.

2. SAME--Avoidance of Policy--False Representations. The fact that untrue answers to material questions were knowingly given by the applicant, constitutes grounds for the annulment of the contract of insurance.

3. SAME -- Policy Contract -- Stipulations Against Waiver by Agent. A claim that the action of a local agent operated to waive a requirement of the company, cannot be sustained where the applicant agreed that no modification of the contract could be made nor any requirements waived by anyone other than the president, vice president or secretary of the company, and there had been no waiver by any of these officers.

4. SAME--Delivery of Policy--Good Health of Applicant. It is competent for parties to agree that the insurance contract shall not be deemed to be complete until the delivery of the policy and that it should not be delivered unless the applicant at the time is in good health.

5. SAME--Policy Contract--"Good Health" Construed. Good health as stipulated in the contract does not mean that the applicant is free from temporary indisposition or slight illness which does not tend to weaken or impair his constitution or usually ends in serious consequences, but if he has a serious disease like pernicious anemia or one that seriously affects the soundness and healthfulness of his system, he cannot be said to be in good health.

Raymond F. Rice, of Lawrence, John S. Wright and Whitson Rogers, both of Kansas City, Mo., for the appellant.

W. D. Jochems and J. Wirth Sargent, both of Wichita, for the appellee.

Johnston, C. J. Hutchison, J., not sitting. Sloan, J., not participating.

OPINION

JOHNSTON, C. J.:

This action was brought by Leota Blanche Klein to recover upon an alleged insurance contract made between Edgar Klein, in his lifetime, and the Farmers and Bankers Life Insurance Company, which was embodied in a written policy of which there was no manual delivery. At the close of plaintiff's evidence the court sustained a demurrer to her evidence and gave judgment for defendant. Plaintiff appeals.

An application for insurance upon his life in the amount of $ 10,000 was made by Edgar Klein on January 9, 1925. In his application he stated to a medical examiner that he had not consulted a physician as to his health in the last ten years; that as far as he knew and believed, he was in good health; that no medical examiner had ever expressed any unfavorable opinion as to his health or insurability and that he had never had any disease or injury. In the application which constituted a part of the contract, it contained an agreement signed by Edgar Klein:

"That no liability shall attach to the company until the first premium is paid and the policy is delivered to and received by me during my lifetime, and good health."

There was a further stipulation:

"That only the president, vice president and secretary of the company can make, modify or discharge contracts or waive any of the company's rights or requirements, and that none of these acts can be done by the agent taking this application."

He was passed by the medical examiner of the insurance company as a fit subject for insurance and a policy was written out and transmitted to the superintendent of insurance on January 13, 1925, where it was registered and the policy was sent to J. R. Holmes, the local agent for the insurance company, for delivery conditioned on the good health of Edgar Klein and the payment of the first annual premium. About January 19 Klein remained at his home under the advice of his physician, who told him to go home and go to bed and rest. A few days later he sent one of his employees to the office of the local agent to inquire if the policy had arrived, and was informed by Holmes, the local agent, that he had received a policy, but refused to deliver it because Klein was then a sick man. There was no offer to pay the premium on the policy, nor was anything said by Holmes at that time respecting the premium. The policy was never delivered, nor was any premium paid, and on August 16, 1925, Klein died of pernicious anemia.

It appears that in December, 1924, he was not feeling well and for a time had not been able to put as much pep into his business as he usually had, and he then interviewed Doctor Sudler, who made an examination of Klein. The doctor asked him if he had his teeth examined, and finding that he had not referred him to Doctor Haden, a Kansas City physician, as an expert in that line. Klein visited Doctor Haden, who made an examination and reported to Doctor Sudler that Klein was suffering from pernicious anemia. It does not appear that Klein was told that he was in an anemic condition, but Sudler advised him that Doctor Haden had found him to be in a run-down condition and that he would have to be treated, and that they might have to put him to bed. After the application for insurance had been made, Klein remained at home and most of the time had been in bed. When the policy was completed and forwarded to Holmes, the local agent, Klein requested an employee to call on Holmes and ask him if the policy had been received. His reply as already stated was that the policy was there but he could not deliver it for the reason that Mr. Klein was a sick man, but no mention was made of the fact that the premium had not been paid. Doctor Sudler had not told Klein that he had any special disease or that he had pernicious anemia, but he did tell Mrs. Klein the seriousness of his trouble. It was Doctor Sudler's opinion that his physical condition was substantially the same on January 20, 1925, when the delivery of the policy was refused, as it had been throughout the month of January.

The court ruled correctly, we think, in holding that plaintiff was not entitled to a recovery. Apart from the question as to the refusal to deliver the policy when Klein was sick and when there had been no payment of premium as required, there is the effect of...