Smith v. Prudential Ins. Co. of America

• Decision Date: 09 July 1932
• Docket Number: 30693.
• Citation: 12 P.2d 793,136 Kan. 120
• Parties: SMITH v. PRUDENTIAL INS. CO. OF AMERICA. [*]
• Court: Kansas Supreme Court

12 P.2d 793

136 Kan. 120

SMITH v. PRUDENTIAL INS. CO. OF AMERICA. ^[*]

No. 30693.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Apparent health of applicant for life and disability policy is not necessarily technical condition calling for opinion of expert

Ordinary observer is generally qualified to state whether person of intimate acquaintance has disease easily recognized and generally well known.

In beneficiary's action on life and disability policy evidence held to support general verdict and special finding that insured's disability did not exist before application.

Where statements of date of disability under life policy is shown to be erroneous, correct date should prevail.

Where petition alleged generally that beneficiary performed all conditions required under policy and defendant did not specially plead breach, evidence establishing furnishing of proof of death was not required (Rev. St. 1923, 60--743.

Beneficiary under life and disability policy, upon insured's death held entitled to recover disability benefits, where insurer was fully protected by judgment.

1. Apparent health, as the qualifying word of the term indicates, is not a technical condition calling for an opinion to be given only by one who is an expert, but is something any one might observe and express.

2. An ordinary observer is generally regarded as being capable of stating whether a person of intimate acquaintance, and after opportunity for observation, has or does not have a disease that is easily recognized and is generally well known.

3. Following the decision in the case of Gass v. Casualty Co., 113 Kan. 510, 214 P. 1115, as to the admissibility and consideration of evidence to correct a mistake of date inadvertently made in a statement of disability made to an insurance company, it is held that, even without a full explanation of how the error occurred, if the statement is shown to be incorrect and wrong, the correct date or fact should prevail.

4. The evidence of the written statements, even regarded as prima facie evidence, and also that of witnesses to the contrary considered and held, there was sufficient evidence to support the general verdict and the answers to special questions and, on the other hand, not sufficient to make a finding in favor of the contents of the written instruments, as a matter of law.

Appeal from District Court, Neosho County; S. C. Brown, Judge.

Action by Vita A. Smith against the Prudential Insurance Company of America. Judgment for the plaintiff, and the defendant appeals.

William C. Michaels, Roy P. Swanson, and Kenneth E. Midgley, all of Kansas City, Mo., and B. M. Dunham, of Chanute (Ralph W. Hyatt, of Newark, N. J., Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., and Finley, Allen & Dunham, of Chanute, of counsel), for appellant.

T. R. Evans, of Chanute, for appellee.

HUTCHISON J.

The appeal in this case is by the defendant insurance company from a judgment of $1,210 rendered against it and in favor of the beneficiary in a life insurance policy for $1,000, containing also a disability provision for $10 per month. The plaintiff claims that the disability feature by its terms cared for the semiannual premiums after the first two payments; otherwise there would have been a lapse as far as the life insurance part of it was concerned on account of the failure to pay premiums. Defendant tendered into court with its answer the total premiums that had been paid, with interest thereon, and pleaded many defenses to the allegations of the petition, among which were the following: "*** That said policy was void for misrepresentations in the application, and that the provisions as to total and permanent disability were void for want of a risk as the loss insured against under said provisions had already occurred at the time the policy was issued. ***"

The resistance of the defendant to the disability feature is based upon the theory supported by some evidence in the form of written statements, that the disability of which the insured complained arose two months before the application for the policy. One of such documents was the formal application for disability benefits, signed by the insured, and stating a disability at an earlier date than the application. Plaintiff invokes the incontestable clause of the policy, which, as far as time is concerned, fully meets this situation. Defendant insists that, while the incontestable clause clearly precludes setting up fraud to defeat the death benefit, yet as to the disability insurance the risk or chance of loss was not present, because the insured was already disabled, and an attempted agreement to insure against something which already existed would be absolutely void, and this would carry with it the incontestable clause as being a part of the agreement and also necessarily void.

This statement of the theory and position of each of the two contending parties brings us to the vital question of fact, Did the disability of the insured exist prior to the application for and the issuance of the policy? The jury in its general verdict and in its answers to special questions found that it did not. Appellant urges that the verdict and answers are not supported by any competent evidence and that the record shows as a matter of law that the disability existed before the application was made. Appellant indicates its position on this question and its grounds for reversal of the judgment rendered mainly in two concise statements, as follows:

"The provisions of the policy relating to disability insurance and waiver of premiums are void as the loss insured against in these provisions had already occurred at the time the policy was applied for, and the company is not prevented from setting up this defense by the running of the contestable period stipulated in the contract. There was, therefore, no waiver of premiums and the life insurance lapsed for nonpayment of premiums prior to insured's death."

"Even assuming that the policy is valid in all its provisions, still it does not cover a disability having its inception prior to the application for and the issuance of the policy, and the life insurance lapsed for nonpayment of premiums prior to insured's death."

These propositions are supported by numerous authorities and as propositions of law they seem to be sound, but they both assume a matter of fact as a premise, and without such premise the propositions would have no substantial basis. The first one definitely assumes that "the loss insured against in these provisions had already occurred at the time the policy was applied for." The second one assumes that the disability had "its inception prior to the application for and the issuance of the policy." In order for either proposition to be controlling, the premise must be a reality. Ordinarily this would be purely and simply a matter of fact. However, appellant urges a second support for its premise, that it is conclusive as a matter of law by reason of certain written evidence, which should be prima facie proof, and conclusive evidence equivalent to admissions.

The insured, Walter Smith, a boy about 17 years old, was in Kansas City, Mo., attending high school in the spring of 1928. He became ill in April of that year, left school, and went to the home of Mrs. Ward where he was living; was in bed several days; a doctor called twice; got better and went to his mother in Wichita about May 13, 1928. On June 22, 1928, he made application for this policy. It was delivered shortly thereafter bearing that date. On June 28, 1928, after lifting a large cake of ice, he had a hemorrhage. July 5, 1928, he was examined by a physician for admission to the state sanitorium for tuberculosis at Norton, Kan.; March 4, 1929, he made written application to the insurance company for disability benefits. This was received by the company April 1, 1929. Semi-annual premiums were paid June 22, 1928, and December 22, 1928, paying same, including grace, up to July 23, 1929. He died January 20, 1931. This action was commenced July 9, 1931.

As stated above, the disability statement to the insurance company and the application to the sanitorium contained references to insured having had a hemorrhage in April, 1928. The former document was signed by him and the latter by a physician. The evidence showed the filling of blanks in the former was in a different handwriting and there were some erasures. A photostatic copy of the former is in the record here. The latter appeared to have been signed by the physician in two places, and testimony shows only one of the two signatures was his.

He stayed at the sanitorium at Norton a few weeks and returned in time to enter high school at Chanute, his home, in the fall of 1929.

Three physicians testified, mostly from examinations made after the hemorrhage in June, and upon hypothetical questions about an earlier indication of tuberculosis or possible occurrence of earlier hemorrhage. The plaintiff, a nurse in Wichita and Chanute, testified as to the boy's health when and after he came to her at Wichita on May 13, 1929, saying his apparent physical condition was good and it...