Western & Southern Life Ins. Co. v. Downs
| Decision Date | 27 November 1945 |
| Citation | 301 Ky. 322,191 S.W.2d 576 |
| Parties | WESTERN & SOUTHERN LIFE INS. CO. v. DOWNS. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Jan. 29, 1946.
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; William H. Field, Judge.
Action by Jeanette Downs against the Western & Southern Life Insurance Company on a life policy. From a judgment for plaintiff, the defendant appeals.
Judgment reversed for proceedings consistent with opinion.
Wm. Marshall Bullitt, William Mellor, and Bullitt & Middleton, all of Louisville, for appellant.
Steinfeld & Steinfeld, of Louisville, for appellee.
VAN SANT, Commissioner.
On March 20, 1944, appellant, the Western and Southern Life Insurance Company, delivered a policy of industrial insurance to appellee's decedent, Alex H. Downs, whereby it agreed to pay to the beneficiary the sum of $500, upon receipt of satisfactory proof of the death of the insured. The insured died on August 1, 1944. Upon refusal of appellant to pay the benefit, appellee insituted this action to recover under the provisions of the policy.
The deceased signed an application for the insurance on the 14th day of March, 1944. The application, when signed, contained the following questions and answers:
'What illness, disease or injuries has Life Proposed had in the past 3 years? None
Has Life Proposed now or ever had (If so, attach letter of full particulars.)
* * *
* * *
A serious injury? No
A serious illness? No
Medical or other treatment in a hospital or institution? No
Any physical defect? No
Is Life Proposed now in sound health? Yes.'
The policy contained the following provision: 'Subject to the provision headed Incontestability, no obligation is assumed by the Company unless on the date and delivery of this policy the Insured is alive and in sound health.'
The defense was based upon two grounds: (1) The insured obtained the policy by fraudulent and material misrepresentations in answering the questions above quoted; and (2) the insured was not in sound health on the date and delivery of the policy. On the trial, the Court properly ruled the burden of proof to be upon appellant. At the conclusion of appellant's testimony, the Court sustained appellee's motion to direct the jury to return a verdict for her in the amount sued for.
The only evidence in respect to the fraudulent and material misrepresentation is that given by the company's agent who described himself as a trustee of the company, a position higher in authority than that of General Agent. He testified that he knew the insured, a few weeks previous to the application for insurance, had received treatment and undergone examination in a hospital for an injury to his back. That, without asking the insured any specific question except 'if there was any good reason why he could not get the insurance', he (the agent) answered all questions on the application; that the insured signed the application; the policy was written upon the strength of the fact that the insured had been examined by another doctor for another insurance company, and a policy issued in pursuance of that examination. There was no evidence that the insured read the answers filled in by the trustee when he signed the application. From this testimony, it is obvious the insured made no misrepresentation to the agent. In the case of Sovereign Camp, W. O. W., v. Alcock, 273 Ky. 734, 117 S.W.2d 938, the agent himself inserted false statements in the written application and induced the insured, by misleading statements, to make false answers to the questions in the application. It was held that the company could not rely upon false representations under those circumstances. In National Life Co. v. Rigney et al., 297 Ky. 743, 180 S.W.2d 847, the agent, cognizant of the true condition, inserted false answers to the questions in the application. It was held that the company could not rely upon misrepresentation, because the knowledge of the agent was imputed to the company. The facts in this case...
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