105 Kan. 99 | Kan. | 1919
Lead Opinion
The opinion of the court was delivered by
Carrie E. Becker was the beneficiary in an accident and health insurance policy procured by her husband, Jacob P. Becker, in the Kansas Casualty and Surety Company. He sustained bodily injuries from external, violent,
The scope of the statute may be first considered. It is contended that in the enactment the legislature had in mind only strict life insurance contracts based upon medical examinations, as well as upon the statements and warranties of the insured. Attention is called to the title of the act which is “An act in relation to life insurance,” etc., without mention of health or accident insurance. It will be observed that the act does not purport to be an amendment of the statute relating expressly to old-line life insurance. It is an independent act which contains nothing indicating that its provisions are to apply to any particular kind of life insurance. It provides :
“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”
The act is not only independent, but it is general in its terms and covers any policy on the lives of persons who are citizens
In view of the application of the act to such insurance, were the misrepresentations of the insured material and fatal to a recovery by the plaintiff? In the application of the insured he warranted that the statements made were true, and agreed that if any of those made in the schedule of warranties were untrue the policy would be void. Item number seven of the application was:
“I have no insurance in this company and no other accident or health insurance, nor have I any other application therefor pending except as herein stated. V
No exception followed this statement, but in the space left for the answer was the check mark indicated. The statement was untrue, in this, that he had applied for insurance in another health and accident company sixteen days before the application herein was made. No certificate had been received by him from the other company at the time of the application to the defendant company, but a certificate was issued under the former application six days afterwards, and of that application and certificate the defendant had no notice until after the death of the insured.
Item number nine was:
“I have never received indemnity for accident or illness except as herein stated. V•
No exception was named, but following the statment was the V -shaped check mark. He had received an indemnity of $25 for a bruised knee about ten years before that time from another company.
Item number eleven in the application was:
“I have never been ruptured . . . except as herein stated., V.”
Nothing.in the nature of an exception was written, but in the space for exception or response was a check mark. It was a fact that he had been ruptured about thirty years before the application to the defendant company was made.
The representations having been made and being untrue, the question arises: Are they rendered innocuous by the statute quoted? Under it the misrepresentations are immaterial unless the matter misrepresented actually contributed to the accidental death of the insured. It is the view of the court that false representations as to a physical condition which was in no way related to the death of the insured, do come within the exemption of the statute, and would not defeat the policy. For instance, an untrue statement that he had never suffered from rheumatism could not be considered as having contributed to accidental death from a gun-shot wound. Statement number eleven is an illustration, of that view. The untrue representations that he had never been ruptured were rendered immaterial because the matter of rupture had no relation to the accidental death of the insured and cannot be said to have contributed to it. The court holds that a different rule applies where the facts misrepresented or fraudulently concealed are such as increase the moral risk, and which, if known by the insurer, would probably have prevented the issuance of the policy. Misrepresentations of this character, although they do not directly contribute to the contingency of death, are deemed not to be within the purpose of the statute. Such misrepresentations never can contribute to the contingency insured against, and therefore it is held that the statute does not apply to or render them harmless.
Statement number seven is of the same character. The false representation that he had no accident or health insurance at the time and had no application for such insurance pending, is
Statement number nine, to the' effect that he had never received indemnity for accident or illness, and which was untrue, falls within the same rule and is deemed to be one of the matters that in no event could have contributed to the contingency against which the insurance was taken, and is not rendered immaterial by the statute.
It is the view of the court that the misrepresentations defeat a recovery by the plaintiff, and therefore the judgment-is reversed with directions to enter judgment for the defendant.
Dissenting Opinion
(dissenting) : In my view, the statute applies to all misrepresentations made in securing a policy of insurance, except those which the statute itself specifically takes out of its operation. By its terms no misrepresentation made to obtain a policy is material unless the matters misrepresented have actually contributed to the accidental death of the insured. The misrepresentations in question, it is conceded, could not have contributed to his death, and therefore they have become immaterial. Apart from the statute, I am inclined to the opinion that the misstatements are not of the kind to defeat a recovery. As to statement seven, he had no insurance when the application was made; and, while he had applied for insurance, no response had been made to the application for sixteen days, and he therefore had reason to believe that it had been rejected or abandoned. His statement may have been entirely innocent, and good faith in making it is enough. (Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622.)
In statement number nine he said that he had received no other indemnity, when as a matter of fact he had received $25 for a slight injury to his knee. The injury and amount received were trifling in character; and, besides, the occurrence was ten years before the application- was made, and may have escaped his memory. Under the circumstances, the statement, although untrue, does not appear to me to be necessarily inconsistent with good faith. However, I think the representations are within the statute and are thereby rendered immaterial.