Painter v. Monumental Life Ins. Co.

• Decision Date: 10 June 1944
• Docket Number: 35335.
• Citation: 158 Kan. 585,149 P.2d 626
• Parties: PAINTER v. MONUMENTAL LIFE INS. CO.
• Court: Kansas Supreme Court

149 P.2d 626

158 Kan. 585

PAINTER v. MONUMENTAL LIFE INS. CO.

No. 35335.

Supreme Court of Kansas

June 10, 1944

Syllabus by the Court.

Verdict of jury is not appealable as "final order". Gen.St.1935, 60-3302.

Ruling on demurrer to evidence is separable appealable order irrespective of whether final judgment has been entered, but when relied upon, notice of appeal must be served and filed within two months of date of ruling. Gen.St.1935, 60-3302; Gen.St.Supp.1943, 60-3309.

Alleged trial errors could not be reviewed in absence of motion for new trial.

Where jury returned verdict for beneficiary on life policy beneficiary would be entitled to interest on verdict from time action was filed, if beneficiary demanded judgment on verdict.

Where there was evidence to sustain finding of the jury, denying beneficiary additional benefits on life policy on ground that wife's death was not result of accident, which was approved by trial court in denying motion for new trial, fact that there was testimony to contrary presented no question for Supreme Court for review.

1. An order overruling a demurrer to evidence is a separable appealable order, but when so relied upon the notice of appeal must be served and filed within two months of the date of the ruling.

2. The verdict of a jury is not a final order from which an appeal will lie.

3. Alleged trial errors cannot be reviewed in the absence of a motion for a new trial.

4. Where there is evidence to sustain a finding of the jury which is approved by the trial court, the fact that there is some testimony to the contrary presents no question for appellate review.

Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.

Action by Clarence W. Painter against Monumental Life Insurance Company to recover on a life policy. From a judgment for plaintiff, both parties appeal.

Appeals dismissed.

Patrick W. Croker, of Kansas City (George H. West, of Kansas City, on the brief), for appellant and cross-appellee, defendant.

David F. Carson, of Kansas City (David W. Carson, of Kansas City on the brief), for appellee and cross-appellant, plaintiff.

HARVEY Justice.

Plaintiff as the beneficiary named in an insurance policy on the life of his wife, sued to recover $1000, being the principal sum of $500 named in the policy for the death of insured and a like amount upon the alleged ground that the death of insured was the result of an accident. A jury trial resulted in a verdict for plaintiff for $500. Both parties have appealed.

In the petition it was alleged, in more detail than is here set out, that the policy was issued June 1, 1940; that the insured died November 2, 1940, while the policy was in full force, and that her death was the direct and proximate result of an accident, within the terms of the policy; that plaintiff had given defendant due notice of the death of insured and made claim for loss, but that defendant had failed to pay the sum due under the policy and had denied liability thereon.

The defense was that the contract of insurance was obtained by the insured by her false representations by declaring in her written application for the policy that she was in good health and that she had never had or been treated for a stated list of diseases, "or any disease or injury not mentioned," understanding that defendant in passing upon her application would rely and act upon her declaration being "complete, true and correct"; that in fact the insured was not then in good health and had been treated by physicians and surgeons for some months for serious diseases, which were detailed; that had the insured truthfully stated the condition of her health in her application the defendant would not have issued the policy. Defendant specifically denied that the death of the insured was an accident, as defined by the terms of the policy. Defendant tendered back premiums which had been paid and asked to be relieved of further liability.

Plaintiff in his reply denied the insured made any false statement to defendant; alleged that defendant's agents were fully informed by insured of the state of her health and that she had been hospitalized and treated by physicians; that if there were any statements to the contrary in the written application they were placed there by the agents of the defendant, who had full knowledge of the facts, and that by reason thereof defendant waived any right to charge lack of knowledge of the health of insured and is estopped to claim such representations induced it to issue the policy. Plaintiff further alleged that if any representations, such as stated in defendant's answer, were made, which plaintiff denied, the matters misrepresented did not contribute to the contingency or event on which the policy became due and payable, and by reason thereof our statute, G.S.1935, 40-418, prohibits defendant from denying liability.

There is no journal of the court setting out the proceedings at the trial, and the record before us does not disclose that judgment has been entered on the verdict at any time. The record does disclose, however, that at...