Lee v. Union Cent. Life Ins. Co.

• Decision Date: 10 May 1900
• Citation: 56 S.W. 724
• Parties: LEE v. UNION CENT. LIFE INS. CO. [1]
• Court: Kentucky Court of Appeals

56 S.W. 724

LEE v. UNION CENT. LIFE INS. CO. ^[1]

Court of Appeals of Kentucky.

May 10, 1900

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by Sallie Lee against the Union Central Life Insurance Company on a contract of insurance. Judgment for defendant and plaintiff appeals, Affirmed.

John W Ray, for appellant.

Frank Chinn, for appellee.

PAYNTER J.

A suit was instituted in the Carlisle circuit court to recover the amount herein involved on an insurance policy. Two appeals were prosecuted to this court from judgments rendered in that action. Lee v. Insurance Co. (Ky.) 41 S.W. 319; Insurance Co. v. Lee (Ky.) 47 S.W. 614. That action on motion of plaintiff, was dismissed without prejudice, and afterwards this action was instituted in the Franklin circuit court on the same alleged cause of action. The agent of the appellee executed and delivered to J. T. Lee a receipt, as follows, to wit: "Received from J. T. Lee thirty-nine 62/100 dollars, being the first annual premium on an application for a policy of insurance in the Union Central Life Insurance Company, of Cincinnati, Ohio, for two thousand dollars on the life of J. T. Lee. It is hereby understood and agreed that said J. T. Lee is to be insured from the date of this receipt, in accordance with all the provisions, conditions, and stipulations of the policies of said company, provided said application shall be approved and accepted by said company. If, however, the application shall be declined by the company, this agreement is to be null and void, and the amount (receipt whereof is herein acknowledged) is to be returned to said J. T. Lee by me on surrender of this receipt." It is averred in the petition that the policy was issued on the life of Lee, payable on his death to the plaintiff; that the policy was never delivered to him. It will be observed that by the terms of the receipt he was to be insured from the date of the receipt, "in accordance with all the provisions, conditions, and stipulations of the policies of said company." From the averment made in the petition, we must conclude that the policy issued was one with the provisions, conditions, and stipulations of the policies which the company was at that time issuing. The contract obligated it to issue that character of policy. It filed with its answer the policy containing the provisions, conditions, and stipulations which the one it should have delivered to Lee should have contained. The receipt does not state the provisions or conditions upon which he was insured, and the only way to ascertain what they were is by an examination of the kind of policy which should have been delivered to him. Therefore, in determining the rights of appellant and appellee, we are bound to ascertain the provisions, conditions, and stipulations of the policy like the one which the appellee was obligated to deliver to the insured. That policy contained a provision as follows, to wit, "That no suit to recover under this policy shall be brought after one year from the death of the insured." The insured died on September 30, 1894, and this action was instituted on March 6, 1899,--nearly five years after the death of the insured.

The principal question in this case is whether the provision of the policy quoted is valid. Can parties to a contract like the one under consideration stipulate that an action upon it shall be brought within one year after the death of the insured? This is no longer an open question in this state. It was recognized as valid in Owen...