Russell v. The United Casualty Company

• Decision Date: 09 April 1927
• Docket Number: 27,275
• Parties: MARK RUSSELL, Appellee, v. THE UNITED CASUALTY COMPANY, Appellant
• Court: Kansas Supreme Court

255 P. 65

123 Kan. 282

MARK RUSSELL, Appellee, v. THE UNITED CASUALTY COMPANY, Appellant

No. 27,275

Supreme Court of Kansas

April 9, 1927

Decided January, 1927.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HEALTH INSURANCE--Application--False Statement Material to Acceptance of Risk. The proceedings considered in an action on a combined health and accident insurance policy, and held the insurance was granted on a false statement material to acceptance of the risk, contained in the application.

2. SAME --Avoidance for Misrepresentation -- Combined Health and Accident Policy--Statutory Provision as to Life Insurance Not Applicable. The policy provided for indemnity for disability resulting from accident, for indemnity for certain specified losses resulting from accident, and for payment of a principal sum in case of death resulting from accident, and as an accident policy, the policy insured against bodily disability resulting directly and independently of all other causes from bodily injury through external, violent and accidental means only. The policy also provided for payment of weekly indemnity for disability resulting from sickness. It did not provide for payment of any sum on account of death from sickness. Held, the statute relating to misrepresentations made in obtaining a policy of insurance on the life of a person, did not apply to the health insurance provisions of the policy.

A. C. Molloy, Roy C. Davis and Warren H. White, all of Hutchinson, for the appellant.

B. A. Earhart, of Hutchinson, for the appellee.

OPINION

BURCH, J.:

The action was one to recover on a policy of health insurance. The defense was that false statements, material to acceptance of the risk, were made in the application. Plaintiff recovered, and defendant appeals.

The application was signed on August 23, 1923, and contained the following:

"I hereby apply to the United Casualty Company for a policy of insurance, to be based upon the following representation of facts:

"1. Do you understand and agree that the insurance, if granted, is to be based upon the following statements, and that any false statement herein shall debar from receiving any indemnity if any such statement is material either to the acceptance of the risk or the hazard assumed by the company or made with intent to deceive? Yes.

"2. Are you now and have you always been in good health? Yes.

"Have you had any sickness or injury in the past five years? If so, give full particulars. No."

Plaintiff testified the answers to the questions relating to good health and to sickness within five years were not the answers he made to the soliciting agent when the questions were propounded to him. He testified he told the soliciting agent he had had shingles, flu, and a few colds, and in effect had not been in good health during the last five years. The soliciting agent testified plaintiff told him he had shingles and some other sickness, cold, grip, but the soliciting agent regarded these as trivial matters, not really affecting good health, and did not set them down. Plaintiff testified he told the soliciting agent he had been to Halstead, and had had a knot in his throat. This the soliciting agent denied. Plaintiff testified he did not tell the soliciting agent he had had a small goiter, or enlargement of the thyroid gland, and testified he did not know he had had a goiter, or enlargement of the thyroid gland. Plaintiff had held a health-insurance policy issued by the Liberty Life Insurance Company, and on March 14, 1923, he signed a written claim against that company. The claim was in his own handwriting, and when confronted with it, he was compelled to admit that it contained the following:

"9. I have not during the past five years required medical attention except for the following disabilities: (Give date and nature of disability, name and address of physician attending.)

"Enlargement of thyroid gland, Dr. Hertzler, Halstead, Kansas. Shingles, Dr. Carhart, city. Lagrippe, Dr. Von Leonrod, city."

An associate of Doctor Hertzler, of the Halstead hospital, testified as follows:

"I have before me a record covering Mark Russell, of Hutchinson Kansas, which is a part of the record of the Halstead hospital, and it is a correct record. Under date of August 5 1921, I recorded a portion of the patient's history, his physical examination, and the treatment given at the time. The diagnosis was mildly toxic goiter, and I suggested medical treatment, rather than physical, and gave medical treatment. There was a slight enlargement of the right side of the thyroid gland, what we would call a rather mild case of goiter. Mr. Russell was back here for treatment three times: on August 17, 1921, August 26, 1921, and ...