Metropolitan Life Ins. Co. v. Blesch

• Decision Date: 25 September 1900
• Citation: 58 S.W. 436
• Parties: METROPOLITAN LIFE INS. CO. v. BLESCH et al. [1]
• Court: Kentucky Court of Appeals

58 S.W. 436

METROPOLITAN LIFE INS. CO. v. BLESCH et al. ^[1]

Court of Appeals of Kentucky.

September 25, 1900

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by Anna Blesch and others against the Metropolitan Life Insurance Company to recover premiums paid. Judgment for plaintiffs, and defendant appeals. Affirmed.

O'Hara & Rouse and F. M. Sackett, for appellant.

John S Roebuck, for appellees.

BURNAM J.

This is an action to recover money paid under a mistake of law. It is alleged by appellee that on or about the 8th day of November 1886, appellants, in consideration of her promise to pay them the sum of 20 cents per week from that date until the death of her father, Richard Barret, agreed to issue and deliver to her a valid policy of life insurance upon his life, payable at his death; that pursuant to this agreement she paid 20 cents per week until January 24, 1898, amounting in the aggregate to $115.40; and that subsequently, on the 6th day of June, 1887, appellant agreed, in consideration of the payment of the sum of 40 cents per week until the death of her father, that they would issue and deliver to her a valid and binding policy of insurance upon the life of her father for the sum of $192, payable at his death; that in performance of her part of the agreement she paid them 40 cents each and every week when the same became due from the time of the agreement until January 24, 1898; that these payments amount in the aggregate to $192.80. She further alleges that at the time said agreements were entered into with appellant it was a part of its constitution and by-laws that all policies of life insurance issued upon the lives of persons without the prior knowledge and consent of such person, and without a medical examination and a knowledge of the bodily health of persons so insured being made and communicated to appellant by its agents or employés, should be invalid, and of no binding force upon them, and that appellant fraudulently withheld all knowledge of such rules from her, and that she was ignorant thereof until about the 24th of January, 1898. She further says that the agreement was entered into by her in good faith, and that the money was paid under a mistake as to her legal rights that both policies upon the life of her father were issued and delivered to her without previous knowledge or consent by him, and without medical examination, and with the full knowledge on the part of the defendant that the insurance was taken without the knowledge or consent of the insured; and prays that the money so paid by her be refunded. A general demurrer to plaintiff's petition being overruled appellants filed answer, in which they put in issue all of the affirmative averments of the petition. First, they deny that there was a failure of consideration for the policy, and admit their liability thereunder; second, they allege that the money sued for was paid voluntarily by appellee, and with knowledge on her part that the insurance of her father's life for her benefit was without his consent; that, being "pari delicto" in taking out the policy, and having paid the premium sued for with the knowledge that the company was not entitled to carry the...