De Pee v. National Life & Acc. Ins. Co.

• Decision Date: 12 December 1936
• Docket Number: 33056.
• Citation: 62 P.2d 923,144 Kan. 751
• Parties: DE PEE v. NATIONAL LIFE & ACCIDENT INS. CO.
• Court: Kansas Supreme Court

62 P.2d 923

144 Kan. 751

DE PEE v. NATIONAL LIFE & ACCIDENT INS. CO.

No. 33056.

Supreme Court of Kansas

December 12, 1936

Syllabus by the Court.

Finding that insurer would not have refused to issue life policy if informed that insured had been inmate in state penitentiary held contrary to evidence.

Finding that insurer would not have refused to issue life policy if informed that prior to signing of application insured had been engaged in various illegal enterprises held contrary to evidence.

Where controlling evidence on issue of fact was given by deposition, Supreme Court held not bound by jury's disregard of or disbelief in deposition, but could determine weight and credibility to be given thereto.

That insured represented that his occupation for 14 years preceding application for life policy had been that of a plasterer, when for half that period he had been incarcerated in penitentiary for robbery, and was merely paroled convict at time of his application, held to preclude recovery on life policy where circumstances attending his death involved his engagement in commission of crime (Rev.St. Supp.1933 40--418).

In an action upon a life insurance policy to recover for the death of the insured who was killed in a gun battle with police officers, the record and findings of fact examined and held:

(a) Certain findings of fact set out in the opinion were altogether without support in the evidence and contrary thereto.

(b) Where the controlling evidence on an issue of fact was given by deposition, the jury's disregard thereof or disbelief therein is not binding on the Supreme Court. In such case the court has its own responsibility to decide what weight and credence should be given thereto.

(c) It was a complete defense to plaintiff's action when it was established that in his application for insurance the insured had represented that his occupation for 14 years preceding such application had been that of a plasterer, when in fact for half that period he had been incarcerated in the penitentiary for robbery, and was merely a paroled convict at the time of his application, and when the circumstances attending his death involved his engagement in the commission of a crime.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Hazel I. De Pee against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, and Robert H. Nelson, all of Wichita, for appellant.

Chas. B. Hudson, E. L. Wheeler, Al Blase, Jr., and Robert E. Blase, all of Wichita, for appellee.

DAWSON Justice.

This was an action to recover on a policy of insurance which defendant issued on the life of one Walter De Pee who met a violent death in McPherson county.

The tragedy occurred on a highway near McPherson on April 19, 1935. The undersheriff, James, and a deputy, Fisher, halted an automobile driven by De Pee and his brother and which was being used in the illegal transportation of intoxicating liquors. A gun battle ensued and Fisher, the deputy sheriff, and De Pee, the insured, were killed.

De Pee's widow brought suit to recover on her husband's insurance policy, which was dated February 22, 1934.

The defendant resisted on the ground that the policy had been issued upon a material misrepresentation of fact which vitiated it. In his application for the policy, dated February 1, 1934, and in response to categorical questions, De Pee stated that his occupation was that of a plasterer, that he had followed that occupation for 14 years, and that in such occupation he had been his own employer. In truth, during that 14 years' interval he had been incarcerated for nearly 7 years in the Oklahoma state penitentiary on a 25-year sentence for robbery, and was merely a paroled prisoner of that institution at the time he applied for the policy sued on. De Pee's release from the penitentiary on a 15-year parole occurred on May 23, 1931. While out on parole he had repeatedly run afoul of the law; he had been jailed and fingerprinted. On one such occasion, less than 5 months prior to the time he applied for this insurance, he informed the police department in Wichita that his occupation was that of a peddler.

The cause was tried before a jury. The facts of insured's prison record were established. So too were the pertinent matters involved in his application for insurance on which defendant relied to defeat a recovery on the policy. An officer of the defendant company who was a member of its risk committee testified by deposition that, if defendant had known that instead of being a plasterer for 14 years the applicant had served a 7-year term in the Oklahoma penitentiary and that he was engaged in various illegal enterprises thereafter, the defendant would not have issued the policy--considering the risk involved.

On plaintiff's behalf there was some testimony that at one time and another, De Pee, ever since he was 5 years old, had assisted in certain brief jobs of plastering. Defendant's demurrer to plaintiff's evidence had been timely interposed and overruled; and likewise its motion for a directed verdict.

The jury returned a verdict for plaintiff, and answered certain special questions thus:

"1. Do you find the evidence that Walter DePee, the assured under the policy sued on in this case, was an inmate of the Oklahoma State Penitentiary at McAlester, Oklahoma, from June of 1924 until 1931? A. Yes.

"2. (a) If you answer the foregoing question in the affirmative, then state whether or not the said Walter DePee in making written application for said insurance concealed the fact that he had been an inmate in the State Penitentiary at McAlester, Oklahoma, from the defendant? A. No.

"(b) Do you find that defendant would have refused to have issued a policy if informed of same? A. No.

"3. Do you find that the said Walter De Pee for a period of 14 years prior to the signing of said application for insurance had

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