New York Life Ins. Co. v. Brown's Adm'r

• Decision Date: 07 February 1902
• Citation: 139 Ky. 711,66 S.W. 613
• Parties: NEW YORK LIFE INS. CO. v. BROWN'S ADM'R. [1]
• Court: Kentucky Court of Appeals

66 S.W. 613

139 Ky. 711

NEW YORK LIFE INS. CO. v. BROWN'S ADM'R. ^[1]

Court of Appeals of Kentucky.

February 7, 1902

Appeal from circuit court, Pike county.

"Not to be officially reported."

Action by the administrator of Charles L. Brown against the New York Life Insurance Company on a policy of life insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Humphrey Burnett & Humphrey and Hager & Stewart, for appellant.

Edward W. Hines, T. L. Edelen, J. M. York, C. C. York, and Geo Pinson, Jr., for appellee.

BURNAM J.

This action was instituted by appellee, as administrator of Charles L. Brown, deceased, against appellant, the New York Life Insurance Company, upon a policy for $5,000 on the life of Brown, payable to his executors, administrators, or assigns. Two defenses were pleaded by the company: First that the insured had in his application, in answer to questions propounded to him by the company, made false and fraudulent answers as to the condition of his own health and as to the disease which had caused the death of his mother and other members of his family; second, that the insured, Charles L. Brown, knowing that he was not a proper subject for life insurance, and that he was afflicted with consumption, which facts were also well known to one George Pinson, Jr., fraudulently conspired with him to procure the issual of the policy sued on, under an agreement that Pinson, who had no pecuniary or other interest in his life, should have the benefit of such insurance. It appears from the evidence that the deceased, at the solicitation of an agent of the company, applied for the policy on 31st day of July, 1897, and was on that day subjected to a physical examination by one of the surgeons of the company; and that the annual premium of $105 due upon the policy was paid to the agent of the company by Pinson, the deceased stating to the agent of the company that the money was advanced by Pinson for him at his request. The policy of insurance was issued by the company at its home office in New York City on the 17th day of August, 1897, and was addressed to the deceased in care of George Pinson, Jr. After it was received, Brown entered into a written agreement with Pinson, by which it was stipulated that, in consideration of Pinson paying the annual premiums upon the policy as they became due, and $500 at the death of the insured to his father, or such other person as he might direct, the policy was assigned and delivered to Pinson. Brown died about 10 months after his application. Pinson at first claimed the benefit of the contract which he had made with Brown, and refused to surrender the policy to his administrator, but subsequently did so in consideration of his employment as an attorney by the administrator at the agreed fee of $1,750. A jury trial resulted in a verdict for the full amount of the policy against appellant.

The principal grounds relied on for a reversal are: First, that the verdict is flagrantly against the weight of the evidence and, second, because of the refusal of the circuit judge to give an instruction based upon the theory that the policy was a wagering and speculative contract, and obnoxious to public policy. The instruction based upon the first defense relied on is, perhaps, more favorable to the defendant than it was entitled to, and we would be very reluctant to disturb the verdict of the jury upon this ground, even if we had before us all the evidence heard by the jury upon this trial. But, as a matter of fact, the record shows that the depositions of Frances Mitchell and Dr. Hadden were used as evidence upon the trial, and they are not embraced in the bill of exceptions. It is true that the clerk, in copying the bill of exceptions, has referred to these depositions in other parts of the transcript. This, however, under the rulings of this court is not sufficient to make them a part of the bill, or authorize their consideration upon this appeal. See Young's Adm'r v. Railroad Co., 7 Ky. Law Rep. 165; Railroad Co. v. Finley (Ky.) 5 S. W. 753; Forest v. Crenshaw, 81 Ky. 51. And, in addition to the two depositions...