Security Life Ins, Co. v. Black, Jr.'s Admr.

• Decision Date: 14 December 1920
• Citation: 190 Ky. 23
• Parties: Security Life Insurance Co. of America v. Black, Jr.'s Administrator.
• Court: Kentucky Court of Appeals

190 Ky. 23

Security Life Insurance Co. of America v. Black, Jr.'s Administrator.

Court of Appeals of Kentucky.

Decided December 14, 1920.

Appeal from Ohio Circuit Court.

J. S. GLENN for appellant.

HEAVRIN & MARTIN for appellee.

OPINION OF THE COURT BY JUDGE HURT — Reversing.

The decedent, Frank Black, made application to the appellant, Security Life Ins. Co. of America, to secure a policy insuring his life in the sum of $1,000.00. The policy was issued and the insured thereafter died, and the appellant refusing to pay the amount of the insurance to the administrator of the insured, this action was instituted for its recovery and resulted in a verdict of the jury and judgment of the court in favor of the administrator. A motion for a new trial having been overruled, the insurance company has appealed.

The application consisted of two parts, one of which was a formal application containing answers to questions propounded, and the other the examination of the applicant by the medical examiner, and containing the questions and answers propounded and answered in that examination and both were made a portion of the policy contract, and in consideration of which the policy was issued. The first part of the application contained the following stipulation: "It is hereby agreed that all the statements made herein and any amendments or supplements hereto, and also those I made to the company's medical examiner which are hereby made a part of this application, are full, complete and true, and shall in the absence of fraud be deemed representations and not warranties, and are offered to the company as a consideration for the policy applied for, . . ."

The following questions were asked by the medical examiner, and the following answers were made by the insured:

"State all the ailments, diseases or disorders with which you are now afflicted? None.

Have you ever had any of the following diseases or conditions: Spitting of blood? No.

Have you been associated during the last year with a person who has had consumption? No.

Been living in a house recently occupied by such a person? No.

                Family   Age If  Condition  Age at  Date of    Cause       How     Previous
                History  Living  of Health  Death   Death     of death  long ill?   health
                                    Good
                Father           (If not      42     1917     Pneumonia   5 days    Fairly good
                Mother          explain)      36     1914    Don't know   6 days    Fairly good
                

Have any members of your family, including uncles and aunts had consumption? No."

The above was followed by the following stipulation: "It is hereby agreed: That the foregoing statements and answers made to the company's medical examiner, are full, complete and true, and shall in the absence of fraud, be deemed representations and not warranties, and are offered to the company as a consideration of the contract and to complete the application for insurance heretofore made." The foregoing medical examination and stipulation were subscribed by the insured as well as the first part of the application.

The policy contained a statement that it was issued in consideration of the application which was made a part of it and contained the following covenant: "All statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and no such statement shall void this policy, unless it is contained in the application therefor."

The insurance company by its answer denied any liability upon the policy, and alleged that the foregoing answers made by the insured in his application were untrue, and that the information sought by the questions to which the answers were made were matters material to the risk assumed in insuring the life of the decedent, and that it, in entering into the insurance contract relied upon the truth of the answers, and would not have made the contract if it had known the true facts; that the insured had in fact been, before making the answers, afflicted with the condition of spitting of blood, caused by a hemorrhage of the lungs, and thereafter died from tuberculosis; that his father and mother were, both, for many years previous to their deaths, afflicted with consumption; that the insured had associated recently with his father, and resided in the same house with him during the year preceding the making of the application, and that both the father and mother of decedent had died from consumption. These averments were denied by reply.

There was an entire lack of evidence, which tended to prove, that the statements of the insured, with reference to his previous health, or spitting of blood, or the ages of his father and mother at the time of their respective deaths, or the cause of his father's death, or his want of knowledge of the cause of the death of his mother, or the duration of the sickness, which caused their respective deaths, were not substantially true, but, with reference to his statements that during the last year he had not been associated with a person, who had consumption, and had not been living in a house recently occupied by a consumptive, and that no member of his family had had consumption, and that the health of his parents was fairly good, previous to the sickness from which they died, the evidence as to whether or not such statements were substantially untrue, was contradictory. There was evidence, which conduced to prove, that his parents were afflicted with the form of tuberculosis, ordinarily called consumption, for a period of years previous to their respective deaths, and that he had during the year, in which the application was made, associated with his father, by living in the same dwelling house with him, and had been residing in the same house for some years which his father at the same time had occupied, and until the death of the father about one month before the application. The evidence was such as required the issue as to...