Priest v. Kansas City Life Insurance Company

• Decision Date: 05 July 1924
• Docket Number: 24,358
• Citation: 227 P. 538,116 Kan. 421
• Parties: MARY F. PRIEST, Appellee, v. KANSAS CITY LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

227 P. 538

116 Kan. 421

MARY F. PRIEST, Appellee, v. KANSAS CITY LIFE INSURANCE COMPANY, Appellant

No. 24,358

Supreme Court of Kansas

July 5, 1924

Decided July, 1924

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIFE INSURANCE--Indefinite Answers to Special Interrogatories--Refusal of Request for More Definite Answers Error. Although the answer "We don't know," returned by a jury to a special interrogatory, when no more definite reply is requested, is interpreted as a finding against the party having the burden of proof on the matter involved, it is the right of a party, upon timely application, to have the jury sent back to make a direct response to the question. And in the present case, where the payment of an insurance policy was contested on the ground that false representations concerning his health had knowingly been made by the insured, answers of that character to questions about his condition are held to have been so material as to make the refusal of such an application reversible error.

2. SAME--Application--False Representations Bearing Upon Applicant's Condition of Health--Question of Fact for Jury. The evidence is held not to establish conclusively, so as to take the matter from the jury, that an applicant for insurance was in ill health, or that he knowingly made false representations bearing on his condition.

3. SAME -- Application -- Knowing Misrepresentations as to Health -- Expert Testimony Admissible. In an action upon a life insurance policy, where the defense is that the insured in his application knowingly misrepresented his state of health expert medical testimony concerning his condition at that time may be introduced by the defendant, although in part based upon his own history of his case.

4. SAME--Knowledge of Soliciting Agent that Answers in Application Were False--No Estoppel to Company. Where false answers concerning his health were knowingly made by an applicant for life insurance, the fact that the agent through whom the application was made, but who was not authorized to decide whether the policy should be issued, knew of their falsity does not prevent the company from successfully resisting payment on the ground of such fraud.

5. SAME--Construction of Clause of Policy. The effect of a clause that a life insurance policy shall not take effect unless the applicant is in good health at the time of its delivery is to protect the company against a new element of risk through a change in the applicant's condition arising after the company's investigation had been made.

6. SAME--Rulings of Court. Rulings concerning the pleadings and burden of proof considered.

Robert Stone, George T. McDermott, Robert L. Webb, Beryl R. Johnson, all of Topeka, James C. Jones, of St. Louis, Mo., and Frank W. McAllister, of Kansas City, Mo., for the appellant.

Park B. Pulsifer, Clyde L. Short, Charles L. Hunt, and C. J. Putt, all of Concordia, for the appellee.

OPINION

MASON, J.:

On January 26, 1914, a policy for $ 10,000 upon the life of Wilson R. Priest, a physician and surgeon of Concordia, fifty-three years of age, was issued by the Kansas City Life Insurance Company, whose principal office was in Kansas City, Mo. Doctor Priest died November 9, 1914. His widow recovered a judgment upon the policy and the company appeals.

Payment of the policy was resisted on the ground that death resulted from kidney disease and palpitation of the heart, and that in the application the insured had falsely represented that he was in good health and free from any disease or infirmity, that he had never had palpitation of the heart or kidney or bladder disease, and that he had not within five years consulted a physician, whereas he knew he was not, and for a long time had not been, in good health, but had had palpitation of the heart, dyspnoea, arterial sclerosis, angina pectoris, enlargement of the heart, excessive blood pressure, Bright's disease and albuminuria, and had consulted a number of physicians within the period named.

1. The jury returned the answer "We don't know," or its equivalent, to questions whether on or before the date of the application the insured had any disease of the kidneys, nephritis, chronic Bright's disease, enlargement of the heart or arterial sclerosis, and whether he had consulted a physician within five years before that time. To questions whether he then had Bright's disease or was in bad health they answered, "We don't think so." To questions whether in one instance enlargement of the heart and in another arterial sclerosis contributed to his death they answered, "It may have."

Upon the return of the verdict and special findings the defendant asked that the jury be required to make each of the latter more specific, and now complains of the refusal of its request. The answer "I don't know," when returned by the jury to a special question and allowed to stand, is interpreted as a finding against the party having the burden of proof, inasmuch as it warrants an inference that there was no preponderance of evidence in his favor. But if a timely request is made to require the jury to return an explicit answer, it should be granted. "It is . . . a right of a party to have a direct response to the questions." (Morrow et al. v. Comm'rs of Saline Co., 21 Kan. 484, 503; Telegraph Co. v. Morris, 67 Kan. 410, 416, 73 P. 108; see, also, Corley v. Railway Co., 90 Kan. 70, 77, 133 P. 555, and cases there cited; Note, Ann. Cas., 1916B 283.) This rule has been held not to apply to interrogatories concerning the nature of the negligence causing fires to be set out by the operation of a railroad, but that is because of the statutory presumption. (Hilligross v. Railway Co., 84 Kan. 372, 114 P. 383.)

For the plaintiff it is argued that any defect in the special findings ought not to cause the judgment to be set aside, because if the answers had been favorable to the defendant they would not have been necessarily inconsistent with the general verdict. The policy provided that "statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties." Therefore the action cannot be defeated on account of false statements in the application unless they were known by the insured to be false. The special interrogatories submitted to the jury related only to the fact of the ill health of the insured, not to his knowledge of the matter inquired about, except in respect to his having consulted a physician. The fact of the insured having various symptoms and diseases was one of the elements entering into the ultimate fact sought to be proved by the defendant--that the insured knowingly made false representations regarding his condition. The defendant was entitled to have its questions in this respect definitely and directly answered, in order that the theory upon which the general verdict was based should be explicitly shown. The very purpose of submitting special interrogatories is in order that the decision of the jury may be had upon the component parts upon which the general verdict must be built up. This purpose is defeated by allowing a direct answer to be evaded.

"The main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law correctly, and to guard against any misapplication of the law by the jury. It is matter of common knowledge that a jury, influenced by a general feeling that one side ought to recover, will bring in a verdict accordingly, when at the same time it will find a certain fact to have been proved which in law is an insuperable barrier to a recovery in accord with the general verdict. And this does not imply intentional dishonesty in the jury, or a failure on the part of the court to instruct correctly, but rather a disposition to jump at results upon a general theory of right and wrong, instead of patiently grasping, arranging and considering details. Scarcely any jury will, when questioned as to a single separate fact, respond that it exists, without some sufficient evidence of its existence. Its response will, as a rule, be correct, if direct; and if not correct, then evasive and equivocal. And such evasive and equivocal answers always cast suspicion on the verdict. The suggestion springs almost involuntarily that the answers are thus evasive and equivocal from an unwillingness on the part of the jury to stultify themselves so far as to say that the facts were or were not proved, mingled with a fear that a direct and positive answer will avoid the effect of the general verdict they have returned. We do not mean to affirm that this is always the case, or that, in fact, such were the motives that influenced the action of this jury; for sometimes, doubtless, the jury are really uncertain as to the fact, and at the same time their verdict should be in favor of the one party, whether the fact did or did not exist. It is therefore a right of a party to have a direct response to the questions." (Morrow et al. v. Comm'rs of Saline Co., 21 Kan. 484, 503.)

Moreover, it cannot be said that the findings as to the actual condition of the insured and as to his having consulted a physician were immaterial, because if they had been directly against the plaintiff they would, if held to be supported by the evidence, make it unnecessary to consider the correctness of several rulings concerning the instructions. For instance, if the findings established the good health of the insured, all questions concerning waiver of false representations, or estoppel to rely upon them, would be eliminated.

2. The defendant urges that the judgment, and the special findings so far as they support it, should be set aside because the ...