Western & Southern Life Ins. Co. v. Weber

• Decision Date: 24 January 1919
• Citation: 209 S.W. 716,183 Ky. 32
• Parties: WESTERN & SOUTHERN LIFE INS. CO. v. WEBER.
• Court: Kentucky Court of Appeals

209 S.W. 716

183 Ky. 32

WESTERN & SOUTHERN LIFE INS. CO. v. WEBER.

Court of Appeals of Kentucky.

January 24, 1919

Rehearing Denied March 21, 1919.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Suit by Katherine Weber against the Western & Southern Life Insurance Company. A demurrer was filed and sustained to two paragraphs of defendant's answer, and, defendant declining to plead further, judgment was rendered against it. Complaining of the judgment, defendant has filed a transcript of the record in the Court of Civil Appeals, accompanied by a motion for an appeal. Motion for appeal sustained, appeal granted, and judgment reversed for further proceedings.

Hugh B Fleece, of Louisville, for appellant.

J. M Chilton, of Louisville, for appellee.

THOMAS J.

On March 29, 1915, the appellant, defendant below, Western &amp Southern Life Insurance Company, issued a policy to the appellee, plaintiff below, Katherine Weber, by which it agreed, in consideration of the payment of stipulated weekly premiums, to pay to plaintiff as beneficiary, upon the death of her husband, John L. Weber, the sum of $200, upon certain conditions named in the policy, only one of which is here involved and will be hereinafter referred to. On October 10 of the same year John L. Weber died, and, defendant failing to pay the amount of the policy after proof of death, plaintiff filed this suit to recover the amount of the policy, and upon trial there was a judgment in her favor for the sum of $200. Complaining of the judgment, the defendant has filed a transcript of the record in this court, accompanied by a motion for an appeal.

The first paragraph of the answer is a denial of certain allegations in the petition. The second paragraph pleads in substance that plaintiff made written application for the policy and stated therein, among other things, that her husband, the insured, was only 49 years of age, and that it relied upon that statement and issued the policy, which it would not have done, had it known that the statement was false and fraudulently made; that in truth and in fact her husband was at that time 56 years of age. It further alleged that according to its method of business in issuing that character of policy (which is known as an industrial one) it did not require a medical or physical examination of the insured when he was under 50 years of age, but that such examination was required when the age of the insured was about 50 years, and that if the true age had been stated an examination would have developed that he was insane at the time, and actually confined as an inmate of the Central State Hospital at Lakeland, Ky. A third paragraph alleged that the policy itself contained a provision that it would be void if the insured had, or ever had, any disease of the brain, and that at that time he was not only afflicted with such disease, but had been so for a considerable time prior thereto. A demurrer was filed and sustained to those two paragraphs, and, defendant declining to plead further, judgment was rendered against it.

The ruling of the court in sustaining the demurrer was bottomed upon the idea that the defenses relied upon in the two paragraphs in question were not available, since it was held that they grew out of statements and representations made in the application for the policy, and neither the application nor a copy thereof was attached to the policy, as required by the provisions of section 679 of the Kentucky Statutes. The policy sued on nowhere contains any reference to the application or by-law, or other paper or document, as forming part of the insurance contract between the parties, or as having any bearing thereon; so the question is whether the court was correct in concluding that the section of the statute, supra, applied to the facts of this case. That section, so far as pertinent to the question involved, reads:

"All policies or certificates hereafter issued to persons within the commonwealth of Kentucky by corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, or the by-laws, or the rules of the corporation, either as forming part of the policy or contract between the parties thereto, or as having any bearing on said contract, shall have such application, by-laws and rules, or the parts thereof relied upon as forming part of the policy or contract between the parties thereto, or as having any bearing on said contract, attached to the policy or certificate, or printed on the face or reverse side thereof, and unless either so attached and accompanying the policy, or printed on the face or reverse side thereof, shall not be received as evidence in any action for the recovery of benefits provided by the policy or certificate, and shall not be considered a part of the policy, or of the contract between the parties."

Prior to the enactment of that statute in 1893, the rule prevailed without exception, so far as we are aware, that an insurance company, in a suit upon a policy issued by it, might rely upon the written application made for the policy, or any by-law or constitution of the company, as forming a part of the contract and bearing thereon, although neither the original nor any copy thereof was contained in, referred to, or attached to the policy. This rule was so general that we deem it unnecessary to make reference to the authorities, except the two late cases from this court of Grand Lodge A. O. U. W. of Kentucky v. Denzer, 129 Ky. 202, 110 S.W. 882, 33 Ky. Law Rep. 643, and Supreme Council C. K. A. v. Fenwick, 169 Ky. 269, 183 S.W. 906. Hence, were it not for the statute, the defendant in suits like this could rely upon any matters contained in documents of the character referred to in the statute, regardless of whether they or any copies thereof were attached, referred to, or contained in the policy, and this right still exists unless prevented by the statute. We are therefore called upon to determine whether the provisions of the statute apply to and include applications, by-laws, etc., not referred to in the policy.

Many rules exist as guides to the court in construing statutes, chief among which is that the intention of the Legislature shall prevail. Another, of equal dignity and as firmly fixed in the law, is that no intention shall be read into the wording of the statute contrary to the plain meaning of the language employed. Setting forth the latter rule, Sutherland on Statutory Construction (2d Ed. by Lewis) § 367, says:

"When the intention of the Legislature is so apparent from the face of a statute that there can be no question as to the meaning, there is

...