Union Cent. Life Ins. Co. v. Lee

• Decision Date: 02 November 1898
• Parties: UNION CENT. LIFE INS. CO. v. LEE. [1]
• Court: Kentucky Court of Appeals

47 S.W. 614

UNION CENT. LIFE INS. CO. v. LEE. ^[1]

Court of Appeals of Kentucky.

November 2, 1898

Appeal from circuit court, Carlisle county.

"Not to be officially reported."

Action by Sallie Lee against the Union Central Life Insurance Company on a policy of insurance. Judgment for plaintiff, and defendant appeals. Reversed.

J. M Nichols & Son, for appellant.

Shelbourn & Ray and John W. Ray, for appellee.

GUFFY J.

It appears that on the 24th day of September, 1894, John T. Lee made an application to appellant for a policy on his life. He gave his note for the first premium, and the agent through whom the application was made delivered to him what may be called a binding receipt. The application was forwarded to the home office, and was received there on the 27th day of September, 1894 which seems to have been approved, and policy made out, and dated September 24, 1894, the date of the application. On the 29th day of September, and before the delivery of the policy, said Lee died, and his wife, Sallie Lee, the beneficiary of the policy, instituted suit against the appellant for the sum named in the policy, to wit $2,000. It further appears that the policy required a larger premium than that named in the application, and the court below, under the pleadings and proof, adjudged, in effect that no contract of insurance had been entered into by the parties, and from that judgment appellee prosecuted an appeal to this court, which judgment was reversed, and upon the return of the case to the circuit court appellant made defense upon several grounds. Upon final trial verdict and judgment were rendered in favor of appellee for the amount of the policy, less the premium note, and, appellant's motion for a new trial having been overruled it prosecutes this appeal. The grounds relied on for a new trial are: (1) Because the court erred in giving instructions Nos. 1 and 2 to the jury; (2) because the court erred in refusing to give instructions A, B, C, and D, asked by appellant; (3) the verdict of the jury is not sustained by sufficient evidence (4) the verdict is contrary to law. Appellant also moved for judgment notwithstanding the verdict.

It is the contention of appellant that the insured committed suicide, and also that he had not truthfully answered certain questions propounded to him in the application, which questions are as follows: "Do you use spirituous, malt or other intoxicating liquors? If so, to what extent? Kind? Average quantity each day? Have you at any time used them to excess? When? Give full particulars?" To each of the foregoing questions the insured answered, "No." The appellant assumed the burden in the court below, and it is insisted that the verdict of the jury is so flagrantly against the evidence that it should be set aside for that reason. It is true that appellant introduced a considerable amount of testimony which conduces to sustain its contention, and especially in regard to the questions asked the insured. The appellee, however, insists that the decision of this court in Insurance Co. v. Thomson, 94 Ky. 259, 22 S.W. 87, settles the law to be that, although the insured might not have truly answered the question under consideration, yet his failure to do so cannot defeat a recovery unless his use of intoxicants or narcotics had been such as to affect his health or physical condition at the time of making the application. The instruction in the Thomson Case was as follows: "If the jury believe from the evidence that Rodes Thomson had a habit of intemperately using intoxicating liquors prior to his application for the insurance in...