Mutual Life Ins. Co. of New York v. Thomson

• Decision Date: 08 April 1893
• Citation: 94 Ky. 253,22 S.W. 87
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. THOMSON et al.
• Court: Kentucky Court of Appeals

22 S.W. 87

94 Ky. 253

MUTUAL LIFE INS. CO. OF NEW YORK v. THOMSON et al.

Court of Appeals of Kentucky.

April 8, 1893

Appeal from court of common pleas, Fayette county.

Action by Margaret Thomson and others against the Mutual Life Insurance Company of New York. Judgment for plaintiffs. Defendant appeals. Affirmed.

Breckenridge & Shelby and G. C. Lockhart, for appellant.

Wm Lindsay, for appellees.

LEWIS J.

Margaret Thomson, widow, and Rodes, C. H., and C. E. Thomson, infant children, of Rodes Thomson, now deceased, brought this action to recover of the Mutual Life Insurance Company of New York $10,000, which, by a policy on the life of the deceased issued November 15, 1887, the defendant promised to pay the plaintiffs; and this is an appeal from a judgment for the amount sued for.

The two main grounds of defense to the action now urged by counsel are-First, that the policy had never been in fact delivered prior to death of the insured, and the contemplated insurance did not, therefore, take effect; second, that the contract of insurance, even if completed, was rendered void by various false statements made by the deceased in his written application for the policy. It appears that November 12 1887, he applied to one Cochran, an insurance broker in the city of Lexington, for the purpose of procuring a policy of insurance from some company, and, the amount of it and of the first premium having been agreed upon, they went together to the office of Dr. Todd, who had been previously appointed by defendant as one of its medical examiners, by whom an examination of Rodes Thomson was then made, and a written application, embodying answers or statements by the physician as well as by Thomson, made out and signed by them. The application thus prepared was on the same day delivered by the physician to Buckley, authorized agent of defendant at Lexington, who had furnished the blank form, and by him sent to the principal office of the company in the city of New York, and November 15th, or in due course of mail thereafter, the policy in question was received by Buckley, and by him placed in the hands of Cochran, to be by him delivered to Rodes Thomson, amount of the premium having in mean time been put in bank to the credit of Cochran. It was, however, not delivered to Rodes Thomson, who died November 28th, but to his wife subsequent to that event. It seems to us the contract of insurance must, under such circumstances, be regarded as completed and binding on the parties before the death of the assured, and that it was both the right and duty of Cochran to deliver the policy as was done; for not only was it placed in his hands by Buckley for that purpose, but the latter received and appropriated to use of the company the amount of the premium that had been placed to credit of Cochran. The lower court did not, therefore, err in assuming and instructing the jury that the policy had been delivered.

The statements or answers to questions in the application which it is alleged in the answer were falsely and fraudulently made by Rodes Thomson are as follows: (1) That he had not previously any serious illness, constitutional disease, or injury; (2) that he did not drink wine, spirits, or malt liquors, daily or habitually; (3) that to the question, if he drank, "To what extent?" the answer was "temperate;" (4) the same answer was given to the question as to his former habits of drinking spirits or malt liquors; (5) that he had not been attended by a physician for any serious cause for ten years; (7) that he never had any of certain enumerated diseases,...