Hawkins v. New York Life Insurance

The trial plaintiff. admitting court did err tes- parol timony. conclusion, fact findings of the trial court were Therefore, substantial,

supported by evidence. competent under Wise, the rule (Bradbury prevailing jurisdiction this Ward, 209; Shotzman v. P. 2d 172 Kan. 239 P. 2d Jones, In re Estate 935; 506, 514, In re 116; 257 P. 2d Davis, Estate 211; 259 P. 2d 1 Hatchers Kansas Digest Ed.], Error, 507; Appeal and Wests Kansas [Rev. Digest, § Error, Appeal and 1010[1]), such findings must be regarded § conclusive and will not be disturbed on appellate review.

The judgment is affirmed. 39,154

No. George W. Hawkins, and Alice L. Williams, Marjorie Murray, J. Company Appellees, York, v. New York Life Insurance of New a Corporation, Appellant. York, New

(269 389) P. 2d Opinion filed April Kahrs, Wichita, cause, argued Nelson, A. Robert H. W. Clarence Geeding, Wichita, Holeman, all Letton, Wilbur D. and R. N. L. appellant. Pittsburg, on the brief for the with him were Resler, cause, Sylvan Bruner, Musser, argued Pittsburg, L. M. Don Columbus, Stauffacher, Matuska, Pittsburg, R. all of and C. and Morris appellees. with him on the brief for of the court was by delivered This was an action to recover on a in- of life policy Thiele, J.: surance and from a in favor of the defendant judgment plaintiffs the appeals.

We note that the and policy, delivery execution of which was admitted, 16,1948, issued March of February effective as 1948, and that provided New York Life Insurance here- Company, after defendant, $2,000 Hawkins, called the would Esther R. pay to insured, on the anniversary of the policy on which her nearest birthday sixty-five if she living, were then or to her beneficiaries Marjorie Williams and L. Murray, Alice her daughters, one-fourth J. each, to Hawkins, and to husband, two-fourths, George W. her upon proof of her death date; $4,000 before the maturity the sum of in the same proportions if such death resulted maturity before the date from means, accidental by as limited of the provisions policy. Other of the parts contract of insurance will be mentioned later.

In their discretion do, and as they had a to right above named beneficiaries filed their in the petition district court of Crawford county, alleging of issuance the policy and that while was in force and on 25, 1949, January the insured died from accidental bar- .biturate intoxication without intent on her that death part result, the accident consisting of fact she did not intend for the amount taken her to by cause that any injury; plaintiffs, sole beneficaries named in the policy, had fully complied with all conditions precedent to establishing liability and had made demand upon the defendant contract, out carry and it had failed to do so. $3,000. Plaintiffs prayed for the sum of

The defendant’s answer admitted the issuance of the policy insurance and that the insured made various and alleged fraudulent and warranties for the representations purpose obtaining thereby company; of insurance and the defendant defrauding information her concerning in her she withheld application by attendance and and failed to disclose physicians various doctors attendance doctors and concerning by physicians information such involved, De- material to the forth details. setting risk commit further intent to suicide fendant insured with alleged and amounts of barbiturates large body into her excessive took died, by reason coma condition as a result entered into a barred are beneficiaries insured act of self-destruction her condition insured knew recovery. alleged Defendant from her condition divulged neither applied when she for insurance aby physician attended nor had been set out her she result and as a within her years five preceding its inception from insurance was void practiced fraud re- effect; was made paid and of no tender premiums the clerk paid made and jected by again and was plaintiffs order the court for to the further subject benefit plaintiffs’ claim” defend- court. denominated “counter By pleading further and cancelled. sought ant to have the set aside of insurance claim answer the counter to the answer Plaintiffs’ reply denial. general was a evi- of plaintiffs’ At conclusion jury.

A trial was demurred, At the being overruled. tire demurrer dence defendant evidence, court for moved the of all the defendant conclusion favor, court was denied. The in its which motion directed verdict later to certain instructions objecting instructed the defendant jury, verdict returned its jury general mentioned. After consideration the filed its motion in favor due time the defendant plaintiffs. notwithstanding motion for judgment for a new trial and its denied, thereon, verdict. After these motions were argument in was entered on the verdict. plaintiffs favor Defendant its to this court error perfected appeal specifying hereafter discussed. masters contends, first that the trial court Appellant heading, under one erred in its to the refusal to sustain its demurrer evi- appellees’ dence, favor, in its its and in submitting refusal to direct a verdict tire case to the re- jury. Disposition requires of the contention view the evidence. to the for the of insurance was attached

The application ( under G. S. 40-420 the two constitute con- 2) tract For be said' parties. present purposes between does not arise from the terms of the but from controversy policy, answers to the medical examiner as a part certain returned answer to 8 the she applicant stated that application. Question any consulted a ailment physician (A) had never of: The heart, vessels, or The or system; lungs; brain nervous blood (B) skin, ear but for: eyes; middle or The stomach (D) (C) bladder, intestines, liver, or or kidneys naming or ailment dis- ease as the duration as one week and the paint poison shown, severity as No name of is al- any physician moderate. though there a blank question therefor. The tenth provided had, was: “Have ever or consulted a or you physician ever prac- for, titioner ailment or disease not any included above your answers?” The Only answer was: “No. for ord. dis. of childhood.” The eleventh was: if question physicians “What practitioners, above, any, not named you have consulted or been examined or treated by within the five The answer was: “None.” past years?” The next to the last read: “On behalf of paragraph myself and of every person who shall or claim any have interest insurance hereunder, I declare that I have read each and all carefully answers, of the above me, are they each written as made by and that full, each of them true, complete and agree that Company them to be true believing rely shall and act them upon accordingly.”

For convenience we here note that under the last above men- tioned statute it is provided: “. . shall, . all statements made the insured in the absence of

fraud, be representations deemed and not warranties . . .” At the commencement trial it was stipulated defend- officer, ant’s chief medical if present, testify would that he consid- ered the application of the on the answers therein insured relied and there was ño reason to doubt that the answers were (believe?) untrue, false or incomplete if had disclosed that May 8, 1945, and again 17, 1946, on December January June 17, 1947, the applicant had been examined June Davis, Dr. Stanley E. suspended have him, until defendant had received full and if the information from Company had known had consulted Doctor Davis on applicant cyst and his examination disclosed ovarian which those dates 17, 1947, still the application was would have been present June denied. testimony Extensive of the oral adduced plaintiffs review Hawkins, is necessary George not for W. who present purposes. insured, testified moved to husband of the deceased Columbus, Kansas, she in the Fashion Shop, worked November, which she had purchased couple 1948. The four but whose prior service to 1945 children, military died in who son known, and another two daughters, immediately death was not the death of over grieved The mother infancy. child which died colds. She son, except physician consulted a had not but Co- After moving in 1944. Doctor Fuller had treated he found a checkup Davis for she went to Doctor lumbus six months ovaries, him every and she returned to on one of her cyst sick, Davis, was not Doctor she consulting for a While checkup. took an active until her death. She hospitalized she was not sick or occasionally. church activities and attended part lodge in civic and her loca- and New Years she moved business Between Christmas unusual concern. tion which caused her nothing happened but 25, 1949, was not sick the week January preceding She died but her before her except Thursday death she could not On sleep. them. Mrs. death the doctor her two but she didn’t take gave pills Hawkins had secured medication the fall before Christmas during thereafter to enable her to rest. On immediately Saturday pre- her death usual. ceding (the she was about as following Tuesday) Sunday On she was up and breakfast. He went out and when he returned about 1:00 m. she p. on the rest asleep slept He' day. called Doctor Davis to take and later was advised his wife to a hospital that was done she died Pittsburg; following He Tuesday morning. further testified his wife went to see Doctor Davis on Thursday get to make her something sleep. medication but did not know the date. Other she obtained He knew the doctor and that she consulting sleep- obtained testimony as tablets; in a coma and regained that she was never conscious- ing set forth. The certificate of death admitted in ness need not be the cause death to be “Barbiturate evidence showed intoxication” of 36 hours between onset and death and the with an interval date 25, 1949. The January of death to be the two testimony daugh- ters, condition, father as to the amplifying mother’s death need not be set medication and forth. We here note there is in connection testimony no with for insurance that the insured truthful answers to all gave questions but that the did medical examiner note them. correctly gist argument insured knowingly stated she had not consulted or been treated aby physician within five to her years prior disclosed by appellees’ evi- dence, true; disclosed the likewise statements were not

29 her; it that had known appellant by relied on answers Doctor Davis and that examination by she had been examined denied; her would have been disclosed an ovarian cyst, questions that her to and the positive failure answers direct give the risk misrepresentations made her were material to by plain- tiffs as her are barred from as a matter of recovery beneficiaries law; that such the case the demurred being plaintiffs’ sustained, evidence should have or introduction following evidence appellant merely amplified showing made by plaintiffs, appellant’s motion for a directed verdict should have been allowed.

Assuming general rules law with reference to fraud and consequent effects and that under apply, such rules plaintiffs recover, not have to we consider the effect a statute first 1907, 226, 1, enacted as Laws ch. sec. which has never been amended 1949,

and which now as G. appears S. 40-418. It reads as follows: misrepresentation obtaining “No securing made in or a of insurance any person persons, state, on the life or lives of or citizens this shall be deemed misrepresented material or render the void unless the matter actually shall contingency have contributed to the event which the payable.” is to become due stated, view of our conclusion later we shall amake rather extensive review of our decisions wherein the above statute has been referred to or its principles applied, whether referred to in the briefs or not.

The first reference specific to the statute in our decisions was in Green Association, 523, Annuity 135 Pac. where it was said that reference was made in the briefs to S.G. (Laws ch. §*1) relating §4200 to misrepresentation in obtaining insurance but it was not to the necessary decision to de- termine the effect of the statute. second case statute was specifically where referred to is

Newton v. Insurance Pac. 619. There the given found that the insured had truthful jury answers to certain asked in the and this said questions court the findings not be disturbed. jury Referring specifically' a question as to finding about whether examined him issuing without this court said: policy, bring jury’s can “We our minds to the finding conclusion that the first point prefer of fact on that should be overturned. We to let rest on the finding jury permit governed of rather than to it to be section grave as to whether Indeed we have doubt the General Statutes every application misrepresentation would not be material this sort guard put right policy. on its has to be An insurance a an insurance say question could not by a of this sort. We frank and truthful answer to a misrepresentation of ever immaterial.” this sort is a matter of law as (1. 432.) c. of fact made addition, findings made that later “The In statement is is also c. A reference will not disturbed.” jury (1. 433.) the be by The in the instructions. incorporated to the statute being made itself, the holding but contains no on the statute comment court, 1, of was: by syllabus this reflected ¶ withholding misrepresentation for life or “The of facts in facts, thus withheld insurance will not defeat the insurance unless those misrepresented, pertain degree malady occasions the or to the in some assured, following of 1909.” 4200 Statutes death of the of General section tire 622, the above 650, 171 Sharrer Pac. Co., In v. Insurance no com there was statute was mentioned and but partially quoted affirming court ment as to its force of this and effect. The decision was, effeGt, showed testimony the for plaintiff jury the good faith and answered plaintiff questions were for claims of fraudulent statements finding grounds fair sustained. no statute held to have actions

The above the benefit v. Woodmen policies Glasgow fraternal insurance 470, World, 354, Kan. and Woodmen the 107 191 Pac. Hiatt v. 359, 191 World, 472, a rule in Steele v. Wood Pac. followed World, 222 the for recovery men Kan. Pac. nor benefits under health health a combined and accident insurance in Russell v. Casualty, United Pac. however, Inter-State Acc. Compare, Business Mens Elliff infra. Co., 105 Kan. Becker v. 181 Pac. decided in Surety the by beneficiary action was to recover for the death of the under an accident health insurance policy. husband her tried on an statement of from agreed facts which the action decided that certain answers in the application trial court the effect of and would have had avoiding untrue except statute. the above provisions considering statute court, effect this Chief and its said: dissenting, Justice Johnston representations having untrue, question being “The they by quoted? Are arises: rendered innocuous the statute Under it the misrepresentations misrepresented actually are immaterial unless matter contributed to the accidental death the insured. It view of court representations physical way that false as to condition which was in no related insured, exemption statute, to the death of the do come within the would not defeat . . . The court holds that a different rule applies misrepresented fraudulently where the facts or concealed are such as risk, which, insurer, probably increase the moral if known prevented policy. Misrepresentations character, have the issuance of the of this although they directly death, contingency do not contribute to the are purpose misrepresentations deemed not be within the of the statute. Such contingency against, can never contribute to the insured it is therefore apply (1. 102.) held that the statute does not to or render them harmless.” c. And court held: representations risk, “False such the insured which affect the moral as applied kind,

that he had not for or or taken out other insurance same illness, that he had indemnity never received for accident while cannot or regarded having directly be the accidental death of contributed to insured, scope mentioned, purpose are not within the of the statute (Syl. 3.) are not rendered immaterial the statute.” ¶ We note the next the course of decision. only two cases to show In & 748, Klein v. 297 Co., Ins. 132 Kan. Farmers Bankers Life 730, Pac. the insured had not stated a medical examiner that he to consulted a he physician within that he believed past years; the ten in good health; was that had expressed any no medical examiner unfavorable opinion health he had insurability as to his and that never had any disease or never delivered injury. was he as was sick when of ready delivery. perni it was for Klein died and an the beneficiary policy. cious anemia his action on brought She was denied Reference for recovery. is made to opinion details as to false answers. be said the Although may opinion held that the policy was not delivered because the insured was not it, health to receive there further that good is a holding material, of matter made was answers were subject inquiries and to operated false defeat contract of insurance. necessarily No made to the specific reference is statute quoted above. Co., 678, National Reserve Ins. 143 Kan. 56 Scott v. P. Life 76, 2d negative question the insured answered a whether insurance, a him life insurance had examined for company without a It was stated the a material one delivering question was a change false answer would the attitude as risk, was to and that it error for the trial court to a direct ver- dict for plaintiff. Reference is made to the for a complete

32 the cause reversed and was The judgment of the facts.

statement However, allowed was rehearing new trial. remanded for a instructions with cause remanded was a result which 224, P. 2d See Kan. the defendant. render for there the two opinions that in neither of 1131. It observed statute. quoted of the above any discussion Co., Ins. National Reserve v. Day We have not overlooked Life 925, appellant appellee both 144 Kan. P. 2d which faith, the statute of good refer. It on question was decided here. and it is not was not mentioned decisive Co., 751, 62 & Ins. 144 Kan. In DePee v. National Accident in his for P. 2d decided the insured application stated that his occupation plasterer he had years he had fourteen occupation followed for of a been his own had been an inmate he employer. Actually He penitentiary parole. the insurance while out applied was killed the commission resisting while arrest while engaged of a crime. a result beneficiary judg As trial his recovered ment and the defendant appealed disposing court. this court, dissent, this appeal without said: knowledge “It ais common matter of that there is or be a moral risk applicant involved in the character of for life A man who insurance. has crime, adopted violence, robbery, especially a career crime of such as rum-running like, and the is not as a man follows tire hon safe a risk as who occupation plasterer. predilection orable and useful of a to a career DePee’s very of crime was involved in the in his violent circumstances culminated death, and misrepresented the matters material under in his Casualty Supp. (Russell the statute R. S. 1933 v. United 40-418. 282, syl. 65; Lodge Trav 255 Pac. Order Commercial United ¶ elers, 598; 262 Pac. & Klein v. Farmers Bankers Life 730.)” 297 Pac. touching misrepresentation “This court that the holds in DePee’s policy employment the nature of was the his material to the risk and rendered inception. judgment cause void from its therefore and the is reversed 754.) (1. judgment remanded enter c. with to for the defendant.” instructions 373, Ins. National Reserve Co. v. 145 Kan. 65 Humphreys, Life 296, P. 2d was an action to cancel a of insurance. The policy peti- alleged tion that the insured insurance for procured policy had $2,500 2, 1925; on that at a later date he another July procured $1,000 strength on the his set out in full representation in the opinion; that the had that the company policy; first paid recitals in to obtain the second and to obtain application

33 false. The relied on reinstatement and petition demurrer to the defendant’s trial court sustained event the matter in stating that opinion memorandum wrote a its This court in statute. the above quoted was controlled by of a that the concealment an allegation noted absence of opinion the cause of death to do with operation anything surgical controlled, later saying part: statute held the above quoted litigants to diligence directed our attention has “The of counsel for the especially Hurt v. interesting analogous decisions in more less cases— 453, 936; Co., the circuit 2d where 2d id. 53 F. New York Ins. 51 F. Life ap- in an appeals false statements tenth circuit characterized court prevented insurance plication precedent which for insurance as conditions instance, mis- not mere coming first contract from into existence in the court representations eminent might Whatever defeat Here, however, plaintiff’s says always usually helpful. instructive and petition alleged certificate health false statements in the insured’s precedent. alleged misrepresentations, conditions are to be allegedly Moreover, precisely point that whether our statute so covers the misrepresenta- precedent false or as be statements characterized as conditions Co., tions, (Newton v. Insurance could not affect the result in this case. 725, 720, 427, Co., 619; Galloway 112 Kan. Kan. v. Insurance 148 Pac. See, also, 887; 188. Hayslip 210 Pac. Pac. v. Insurance (1. 1281-1284.)” 376.) 32 C. c. J. 2d P. In Brown Metropolitan Life the reinstate- policy, we a lapsed considered reinstatement of insured stating ment being procured on a written As shown the policy. had not consulted a since issue physician the policy, on an action by the false. the answer was opinion the above rely on the beneficiary sought appeal, made A review statute. This court held inapplicable. applica- in an authorities of answers dealing materiality with It was therewith. tion for insurance and fraud in connection to material held false answers evidence showed undisputed re- for plaintiff trial court matters and the render judg- instructions versed and the remanded with cause ment for the defendant. 2d 75 P. Jeffries, National Reserve Ins. Co. v. made to that Reference is cancel a policy. was an action to of authorities. facts and a review for a full statement from the company a policy the insured obtained stated

Rriefly by virtue of a second he obtained June, medical undergone any had not he he stated certificate which treatment surgical proof since a date. The showed the previous answer false and had was that he received treatment for hemo- phagia, chronic and that he died of constipation hypertension, In its this court stated issuance of the hemorrhage. policy solely without medical examination depended upon repre- health, good sentation as to good representation health not have been made a medical would have been examination ailment which have disclosed the identical of which died; that insured the matter to the misrepresented contributed due, event on and rendered became was material void, the policy citing the above statute and the case Humphreys noted above. v. National Acc. Ins. Jackson

P. 2d defended an recovery action for on a policy of insurance that false answers were ground know- therefor, ingly made in the did that defendant know the answers were issued the false and would not have if it had been informed. are set questions The answers forth in the opinion. chiropractor Insured had consulted a acute gastritis, a matter concealed her. answer made She died of myocarditis. Attention was directed statute, to the quoted above stated, it shortly was there held was no connection between death, the concealed matter and the cause of and the only question was whether insured made answers fraudulently. This court held the answer was not a warranty that good faith in making the answer was sufficient even it though was incorrect as a matter of fact. of the trial court allowing recovery was sustained. Our attention also directed to v. Inter-State Business Mens Elliff 177, 109

Acc. P. 2d The case involved an accident and health and the action was for recovery for disability resulting from accident. The application did not disclose the in sured had consulted physician during a named period. The proof he had showed that and the jury so found. Attention was directed statute, to the quoted and it said there no causal connec tion between the illness for which the insured had consulted the physician and the injury for which he sought recovery. It was further stated although was pleaded the answer affected the assumed, risk there was no thereon. proof The judgment of the trial court allowing recovery was affirmed. Depew, to United States directs our attention

Appellant army in the the insured a soldier F. 2d 725. In while April, he stating to the United States for a of insurance policy applied he never treated for was then in health and that good nerves, stomach, liver, in- disease of brain or throat or any lungs, testines and other A was issued specified parts body. policy effective as of of in- May 1931. In the director February, surance the in canceled for fraud in the answers contained policy matter, the application. reference to Omitting intervening plaintiff filed an amended on the The petition seeking recovery United States answered that the was obtained fraud on policy the of the insured in part false in his making application. answers Trial was had by the court and at the close of the evidence the United States moved for The court for judgment. found plaintiff and appeal followed. As shown the there opinion undisputed evidence the insured had been hospitalized on a number of occa- for sions difficulties connected with his lungs hemorrhaged until his death. We need not out the decision frequently follow to a conclusion fully, leading untrue know- representations ingly were material as a matter of law. Under the circum- stances the cause was remanded for a new trial. We note that the States; in question arose under the United policy statutes of the involved, that no statute similar to ours as above was quoted that the case is not decisive here. New v. directs attention to Ins. Co. also York Appellant Life 181, an F. 2d action commenced in a district court

McCurdy, and removed to the federal court for trial which re- of this state for from which the plaintiff company appealed. sulted a judgment be reviewed at his length. ap- and cannot long The opinion who was a doctor of medicine the insured insurance for plication he had ever consulted a whether answer gave negative or disease not for ailment included or physician practitioner questions and answers called previous his answers. These above suffering pain, from tenderness for no that he was answer him on A was issued to April of his testicle. right swelling showed he died on Decem- evidence and the uncontroverted its in that testicle. origin which had With- of a cancer ber showed the of the answer proof falsity said the be out detail prior making above physician consulting as to treated on a number of had been occasions the insured for the trouble in the testicle. In the course of by various doctors court referred to of our decisions appellate many and stated that when fraud is obtaining established insurance there can be no recovery notwithstanding above decisions, quoted statute. cites support court a number of our and decisions from other Hurt v. New York jurisdictions, including Ins. referred to in National Reserve Co. Life Humphreys, We supra. pause shall not to review our decisions cited to determine whether the rather support broad court, statement made have no we doubt that under evidence misrepresentation and actually was material contrib- uted to the event on became due and payable, that under the circumstances the could not beneficiary rely on above quoted statute. argument that its demurrer gist appellees’

evidence should have been sustained and that the trial erred court in not a in its is verdict favor that the directing appellees’ proof established that the insured returned false questions answers to as to whether she had consulted a for physician any other disease not included in her answers not which did refer to her reproductive organs, and as she to whether had consulted or by been examined or treated by a physician practitioner or within the five past years, and known of the on company her con- cyst ovary, which she cerning consulted as stated in our physician, review of evidence, not have issued the policy; the matter was material 'to issuance of the policy, under our decisions dealing with “moral risk” it not liable under the policy except return of premiums, which it had tendered into court. support many cites of the cases reviewed above.

Answering contention direct appellees attention to fact that there was no evidence that the ovarian or cyst any other minor conditions from which the insured have suffered and for which she had been examined or treated to her prior making application to her death which for the insurance contributed by caused intoxication, submit that as the barbiturate defense of did pertain to a appellant misrepresentation fraud raised contributing contingency to the or event on actually which the it was not due material policy payable, became under the statute, and that their evidence a prima above facie en- case them to recover. titling question that there is no makes it clear

A of the evidence review insured, answered that she in her application, when the but that or physician examined or treated had not consulted clear, equally false. It is she knew answer was practitioner, and concealed. misrepresented however, which was that the matter contribute to e., actually did not i. ovarian cyst, that she had an due, evidence clearly for the became the event on which the from barbiturate poisoning. disclosed her death resulted in its terms that no misrep- is clear quoted The statute above shall be deemed ma- for insurance resentation in the application the matter misrepresented unless void terial the policy or render on the policy to the event which contributed actually shall have in Becker v. Surety this court It true that becomes due. syl- as forth in to “moral risk” set did supra, make exception in DePee Na- rule was followed labus 3 of that which ¶ in- at least recognized tional & supra, Accident has this court a reconsideration directly Upon other cases. language concluded that in clear and explicit view of the statute, an excep- it was on that statute unwarranted engrafting include, tion the and that it should legislature did not see fit to hold, follow an ex- engrafting the statute as without written thereon, ception obtaining made in that the only misrepresentation one life material is insurance which shall be deemed which actually the event on be- contributed to due, to, comes and that last referred the Becker and DePee cases statute, insofar as they make should “moral risk” an to the exception be repudiated overruled, and that anything savoring approval of “moral risk” as an other case exception to the statute should be disapproved.

We conclude the trial court did not err in ruling evidence, demurrer to a verdict nor in to direct appellees’ refusing favor. appellant’s provided fact the policy attention directing Appellant, death, contends there in the of accidental indemnity double event meaning no evidence of accidental death within was to contend arrive at that conclusion is driven appellant To be con- offered, and should not hearsay was evidence, it that We do that be done. whether not decide We need sidered. that the in- alleged it was answer that in not overlook of barbiturates. excessive amounts taking as the result sured died 38 n showing of death certificate statutory evidence included

Other This evi poisoning. competent was insured died of barbiturate Travelers, Jaques under v. dence of the cause of death Commercial 612, 617, 180 104 Kan. Porter v. Ins. Metropolitan Pac. Life 521, 524, 155 P. testi Kan. 2d 444. addition there was mony of barbi attending that she an overdose of physicians turates, It became a coma and died. is here noted that appellant concedes it failed in its effort insured committed prove suicide by taking an overdose barbiturates.

There is no evidence that insured was aware of what amount of the drug produce death. all the evi- repeating Without dence insured, as to dosages taken jury we think it such the could infer properly that insured was ignorance the amount she took was a lethal dose that her death was by accidental means. Soc., v. (Spence Equitable Assurance 146 Kan. Life 69 P. 2d 713.)

Under the evidence the overdose was either drug taken with suicidal intent or Under accidentally. the circumstances here the assumption unwarranted, would be but if it be assumed the evidence as to whether the taking of was accidental or drug suicidal was so nearly doubt, balanced toas leave the answer in presumption would be favor of (Mutual accident. v. Wiswell, Co. 258; Pac. 35 L. A.R. O’Brien Insurance 138, 144, 1100; Pac. and Muzenich v. Grand Carniolian Union, Slovenian Catholic 119 P. 2d 138 A. L. R. 818.)

Appellant’s contention the appellees’ proof did not establish death by accident cannot be sustained. .

Appellant also contends that certain instructions to jury erroneous. With one exception objections predicated are on its contention it could rely on “moral risk.” In view what has been case, said it phase becomes unnecessary to discuss the contentions made. also Appellant contends an instruction as to what constitutes “accident” should not have been “since given there no evidence accidental death or a suicide.” plead- thereon, ings made an evidence, issue there and the objection good. said, view of what has it follows that the judgment.must be and is affirmed. I, fore- that portion from dissent (dissenting): Thiele, J. first promul to “moral risk” rule as repudiating

going opinion recognized and since supra, v. Surety in Becker gated thirty-four years of over In the period today. until followed In 1927 met repeatedly. has legislature announced since it was (Laws to insurance pertaining a revision of our statutes it enacted the rule change promulgated effort to Ch. and made no 231) & Accident v. National decision in DePee nor since the think the rule is the rule. I has it changed supra, me, the instant To sound and should be adhered to followed. material concealment of facts that there was conclusively case shows the policy, when it issued to the risk assumed disclosed, which, pre if the truth had been would have and a fraud demurrer vented issuance sustained. evidence should have been appellees’ in .the dissent. JJ., foregoing concur Price, Wedell 39,203

No. a Cor- Appellee, Company, F. Trapp, Leonard Standard Oil and Orval poration, Appellants, Powell, Parker, Sr., Thomas et al. (269 469) 2dP. Opinion April 10,

filed Maxwell, Barber, Lawrence, cause, argued C. Richard A. and lack Lawrence, appellant, Oil Com- him on the briefs for the Standard was with cause, Lillard, Eidson, Topeka, argued pany; and Thomas M. O. B. Porter, Topeka, Philip all of were with him on the H. Lewis and W. James Asher, Parker, Sr.; Henry appellant, M. H. Clarence Thomas briefs for

Case Details

Case Name: Hawkins v. New York Life Insurance

Court Name: Supreme Court of Kansas

Date Published: Apr 10, 1954

Citation: 269 P.2d 389

Docket Number: 39,154

Court Abbreviation: Kan.