M. L. A. of W. N. Y. v. Robinson

• Decision Date: 13 June 1912
• Citation: 149 Ky. 80
• Parties: Masonic Life Association of Western New York v. Robinson.
• Court: Kentucky Court of Appeals

149 Ky. 80

Masonic Life Association of Western New York v. Robinson.

Court of Appeals of Kentucky.

Decided June 13, 1912.

Appeal from Jessamine Circuit Court.

HARRY D. WILLIAMS, SAMUEL M. WILSON for appellant.

E. E. HOOVER, E. H. GAITHER for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

On the 29th day of September, 1902, the appellant life association issued to Sleet P. Robinson a policy of insurance upon his life for the sum of $2,000, payable to his wife, the appellee. In October, 1909, Sleet P. Robinson died, and the association refusing upon proper proof and demand to pay the insurance, the appellee brought this action to recover the amount due by the terms of the policy, and upon a trial before a jury a verdict was returned in her favor; and it is of the judgment on this verdict that the appellant association complains. A reversal is asked upon grounds: First, the failure of the trial court to direct a verdict in its favor upon the conclusion of the evidence; second, for error in not granting it a new trial on the ground that the verdict was flagrantly against the evidence.

For defense to the suit, the association set out in an answer and amended answer that the policy was issued "in consideration of and in reliance upon the representations and agreements made in the application;" and that it was provided in the application, which was attached to and made a part of the policy, that:

"If the said party to whom this certificate is issued shall fail to pay the sum to be paid by him as aforesaid, or if any misrepresentations, untrue or fraudulent statements, have been made in his application for membership in said association, * * * or if he in any other manner fails to comply with the conditions of the by-laws of the association, then this agreement shall cease and be of no effect and all claims of whatever nature, beneficial or otherwise, arising under this certificate shall be forfeited. * * * It is fully understood that the person soliciting or taking this application, if other than a general officer of the association, and also the medical examiner, shall be the agents of the applicant as to all statements and answers in this application." * * *

It was also averred that in the by-laws referred to in the application, it was provided that:

"Any person who shall make any untrue or fraudulent statements, or conceal any fact regarding his health, habits, or otherwise, in his application for membership in this association, shall forfeit for the use and benefit of the association, all payments made by him or rights of membership and all benefits, rights or equities arising out of his connection with the association."

It was further averred that Robinson was required to answer certain printed questions stated in the application, and to sign the application and file the same with the association, which he did and that upon the statements made by Robinson in the application, together with the medical examination accompanying the application, the association in accordance with its usual course of business determined whether the application should be received and the applicant insured or not. It was also averred that one of the questions asked by the association in the application for insurance was "Has any physician ever given an unfavorable opinion upon your life as to insurance, or otherwise?" to which question Robinson answered "No." That another question in the application was "Has your application for insurance ever been rejected? ________ If so, name all companies?" to the first part of which question he answered "No." That another question propounded in the application was "Have you ever had any of the following diseases: * * * diseases of the kidneys?" and to this question in reference to diseases of the kidneys the applicant answered "No." That another question in the application was "By what doctor have you been treated during the last five years?" to which the applicant answered "None."

The answer then proceeded to state that:

"Prior to the making out of the application, Robinson had previously made applications for insurance to the Mutual Life Insurance Company of Springfield, Mass., the Washington Life Insurance Company of New York City, and the Michigan Mutual Life Insurance Company of Detroit, Michigan, and in each instance his application for insurance had been rejected by said companies, and in the case of each and all of said rejections an unfavorable opinion upon the life of the applicant Robinson as to insurance or otherwise had been given by the physicians making an examination of the applicant for such insurance or by some physician whose duty it was to pass upon such applicant for insurance."

It further averred that within five years next before the making of the application Robinson had consulted and had been under the treatment of a doctor or a physician, and that he died of a disease of the kidneys, and that it was because of indications of this disease that his application was rejected in the companies to which he applied for insurance. It further averred that:

"Relying upon the statements and representations made by Robinson and believing same to be true in his application for said certificate or policy of insurance, it accepted said application and issued said policy, when had defendant known or been informed of the truth concerning the matters hereinbefore specifically mentioned it would have declined said application and refused to have issued any insurance thereon. Defendant further says that because of the misrepresentations and untrue statements in the answers made in the application for membership in this association by Robinson, said contract of insurance was by the express terms thereof avoided, and all obligations upon this defendant were fully discharged and satisfied, and there now no longer exists upon the defendant under said certificate or policy of insurance any liability whatsoever."

In a reply and amended replies, it was averred in substance that when the application was made and being written, the applicant was advised and told by the agent, who was then acting as the agent of the company and not the applicant, that the question "Has your application for insurance ever been rejected?" had reference only to whether the applicant had ever been rejected by the company he was then making application to, and that he so understood the question, and that the answer "No" was written by the agent after thus explaining the meaning of the question. It was also in substance averred that the physician who examined the applicant and who in making the examination and the medical report, was acting as the agent of the company, had at the time full knowledge independent of any answers the applicant might then make of the present and past condition of his health and that the answers as to the past and present condition of his health relied on in defense of the suit were suggested by the physician or made from his knowledge of the health of the applicant and not upon information furnished by the applicant. It was also in substance averred that the association before or soon after it issued the policy obtained full information independent of the application and medical report of the truth or falsity of each of the answers made in the application and medical report, and that after obtaining this knowledge it continued to demand and collect the regular premiums and demanded and collected some of them after the death of the insured. That when it demanded and collected these premiums, it knew then as well as it knew when it relied on the falsity of the answers in the application and medical report to defeat the collection of the policy, that the answers relied on to defeat the policy were false. It was further averred that by reason of the fact that the answers relied on to defeat the...