Sharrer v. The Capitol Life Insurance Company
| Decision Date | 09 March 1918 |
| Docket Number | 21,373 |
| Citation | 102 Kan. 650,171 P. 622 |
| Parties | MARY E. SHARRER, Appellee, v. THE CAPITOL LIFE INSURANCE COMPANY, OF COLORADO, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1918.
Appeal from Saline district court; DALLAS GROVER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. LIFE INSURANCE--Physical Appearance of Applicant--Testimony of Neighbors. Testimony of neighbors as to physical appearance of the insured was properly received touching his good faith in making the statements contained in the application.
2. SAME--Statements in Application--Representations Not Warranties. The policy provided that the statements made by the insured should, in the absence of fraud, be deemed representations, and not warranties. Held, that good faith in making such statements was sufficient, although they may have been incorrect in fact.
3. SAME--Verdict--Instructions. The evidence supported the verdict, and there was no error in the giving or refusing of instructions.
C. W Burch, B. I. Litowich, LaRue Royce, all of Salina, and William E. Hutton, of Denver, Colo., for the appellant.
Z. C. Millikin, of Salina, for the appellee.
The defendant appeals from a judgment on a life insurance policy, claiming that the answers of the applicant touching his health relieved the company from liability; that certain testimony was improperly admitted; that certain findings of fact should have been set aside; and that the court erred in charging the jury.
The answers in the application complained of are that he had never had any disease of the stomach, and that to the question, "How often during the past five years did you consult a physician?" the answer was "No." It seems that the applicant had consulted certain doctors about some digestive disturbance, and had had his stomach washed out and received some treatments, and that some months after the policy was issued the trouble developed into a cancer of the stomach or esophagus, from which he died. The agent testified that he took the examination blank on September 27, 1915, and the policy was issued three days later; that he had known the deceased some two years; that he went to his house to solicit his two boys for life insurance and spoke to the father about insuring him, remaining at the house two or two and a half hours. Later, he called the deceased to come to his office and finally got his application for life insurance, being paid one year's premium in advance by check. He sent the applicant to Dr. Moses, the examiner, and when the policy came the agent went out as quickly as he could and delivered it at the applicant's home and stayed there until after dinner. He did not observe anything unusual about the applicant's eating; he seemed to eat like the rest of the people--took the same kind of food as near as the agent could tell, and was apparently in good health.
The examiner testified that he did all the writing on the application, except the signature.
. . . .
The jury found that the deceased consulted one physician June 28, and July 26, 1915, another about August 25 and September 4, and the former about September 27, but that on September 27, and for two months before, he enjoyed good health, and that two months prior to that date he had no sickness.
Witnesses were permitted to testify that they had seen the deceased at various times during the summer and fall, one as late as December, and that he looked and acted as usual. This simply corresponds with what the examining physician thought at the time he wrote in the answers to the questions and it was competent touching the good faith of the deceased, for if his appearance...
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