Provident Sav. Life Assur. Soc. v. Dees

• Decision Date: 12 April 1905
• Citation: 86 S.W. 522,120 Ky. 285
• Parties: PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK v. DEES.
• Court: Kentucky Court of Appeals

86 S.W. 522

120 Ky. 285

PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK v. DEES.

Court of Appeals of Kentucky.

April 12, 1905

Appeal from Circuit Court, Calloway County.

"To be officially reported."

Action by S. H. Dees, guardian of Gray A. Gatlin and another against the Provident Savings Life Assurance Society of New York. From a judgment for plaintiff, the defendant appeals. Reversed.

Reed &amp Berry and Frank P. Poston, for appellant.

Hendrick & Miller, for appellee.

HOBSON C.J.

On September 6, 1899, the Provident Savings Life Assurance Society of New York issued a policy on the life of William P Gatlin, of Murray, Ky. for the sum of $10,000. In his application for the policy Gatlin stated the beneficiary was his daughter, Gray A. Gatlin, and the policy was so issued in New York and mailed to the agent of the company in Cincinnati. Gatlin paid the premiums on the policy until his death, on April 19, 1901, and when the policy was produced after his death it contained, in addition to the name of Gray A. Gatlin, the name of George O. Gatlin, his son, as one of the beneficiaries. When and by whom this change was made does not appear, except that there was evidence tending to show that the additional words were in the handwriting of the insured, William P. Gatlin. Both the son and the daughter were infants, and brought suit by their guardian upon the policy. The company, among other things, pleaded the alteration of the policy in bar of the action. It also pleaded that Gatlin had made false statements in his application as to his habits as to drinking whisky. The application contained, among other things, the following questions and answers:

"(7) Have you ever used spirits, wine or malt liquors?

"Yes.

"(8) Have you ever used them in excess?

"No.

"(9) Do you now use them? If so, state definitely what is the form, how much and how often--i. e. What is your practice? Don't say moderately, &c. Such answers will not be accepted (see No. 2 on back).

"Yes; whisky. Three drinks a month."

The defendant introduced proof on the trial, which, while not conclusive, was sufficient to warrant the jury in concluding that the assured drank much more whisky than stated. We do not mean to say that the evidence would have required the jury to so find, but only that there was evidence sufficient to submit the issue to the jury. The question is therefore presented whether the instructions of the court properly presented the matter to the jury. The court, by instruction 1, told the jury that if the answers of Gatlin above quoted were "honestly made, without any intention to deceive or defraud the defendant company, and that said answers were substantially true," then they should find for the plaintiff. He also told them, in instruction 3, that if either of the answers was "in fact untrue, and was made with the fraudulent intent to deceive or mislead defendant company, and with intent that defendant should rely, and it did rely, on said answers in issuing the policy," they should find for the defendant. The court also, by another instruction, directed the jury to find for the defendant if the policy had been altered by William P. Gatlin by the addition of the name of George O. Gatlin without the knowledge or consent of the company, although the alteration was made without any fraudulent intent on the part of William P. Gatlin. The jury found for the plaintiffs, and the defendant appeals.

As to the alteration of the policy, we think the instruction was more favorable to the defendant than it should have been. If the application was in fact accepted by the company, and the policy issued with Gray A. Gatlin as the sole beneficiary her rights then became fixed, and neither the insured nor the company could affect her rights, except as provided in the policy. It is true, it is provided in the policy that the insured might change the beneficiary with the consent of the company, but he could not effect this end in any way not provided by the contract. If he had scratched out her name in the policy after it reached his hands, and inserted his own name, this would not have affected her rights. She could have shown the mutilation and recovered upon the contract as it was before it was mutilated. If, instead of scratching out her name, he let her name remain, and added another as a joint beneficiary in the policy, no greater effect can be given his wrongful act than if he had scratched out her name and inserted in lieu of it the name of her brother. If the alteration was made before the policy was delivered or became effective, or with the consent of the company, a different question would be presented. In lieu of the instruction which the court gave as to the alteration of the contract, the court should have...