121 Kan. 271 | Kan. | 1926
The opinion of the court was delivered by
This was an action on an insurance contract-in which judgment was rendered for plaintiff, Letha Hembree, and from which defendant, The American Insurance Union, appeals.
“Whereas, the undersigned has made application for membership in the American Insurance Union; and whereas, said applicant, the undersigned, is now pregnant; it is hereby understood and agreed as a condition of immediate membership 'that should this applicant, the undersigned, die from any complications arising from the present pregnancy, or become an invalid as a l’esult therefrom, the certificate of membership issued upon said application for membership shall be void, and the American Insurance Union shall not be obligated to pay any benefits whatever to the undersigned applicant, or her beneficiary, or beneficiaries, and this agreement shall be part of my contract of membership and insurance.”
It is alleged that the quoted statement was delivered to the defendant prior to the issuance and delivery of the certificate of membership, which occurred on April 22, 1924. It was further alleged that under the constitution and by-laws of the defendant, the certificate, articles of incorporation and laws of the society, the answers, statements and warranties made in the application for membership, and the medical examination, shall constitute the contract between the society and the member as well as the beneficiaries named in the certificate. It is admitted that the insured died on June 9, 1924, but it is alleged that she died from complications arising from the pregnancy which existed at the time, the application was made and-the policy executed and delivered, and that therefore no liability arose upon the contract. The certificate issued, which was made a part of the answer, provided among other things -that if the application or any part of it should be in any respect untrue, the policy would be void and the insurance forfeited. Upon admissions and averments of the answer the plaintiff moved for
The case turns upon the question whether or not the statement or waiver forms a part of the contract of insurance. In support of the judgment plaintiff contends that the statement of the applicant waiving benefits in case of death from present pregnancy or from complications arising from that condition, was not a part of the contract; that it consisted only of the policy, the articles of incorporation, the laws of the union, and the answers, statements and warranties made in the original application and in the medical examination. Attention is called to the laws of the union which provide specifically that these things shall constitute the contract, and further, that the certificate issued contained no exceptions on account of the pregnancy of the applicant. It did provide that—
“In consideration of the application for membership and of the warranty that each and every answer and statement made therein is full, complete and true, and of the further warranty by the applicant that they are the only answers and statements upon which this contract is made,” etc.
Plaintiff further contends that the-pleadings show that the application was in fact made in March, 1924, when the medical examination was had, and that the statement of waiver was not made until April 16, 1924, and that the certificate by its own terms excludes all other statements than those originally made. It appears, however, that the certificate was not executed until April 22, 1924, while the statement in question was made on April 16, 1924. The application, answers, statements and certificates all relate to the same subject matter, a single transaction of membership and insurance, and must be read and interpreted together. While statements were made when the insured first applied for insurance, the additional statement of waiver preceded the execution of the contract. We think that statement must be deemed to be a part of the application. In the statement the insured describes herself and signs the writing as applicant. She stated that she, the undersigned applicant, was then pregnant, and as a condition to obtaining immediate membership agreed that if her death arose from present pregnancy or she should become an invalid resulting therefrom, the certificate should be void, and no benefit should be paid to her or to her beneficiary. This recital was followed by the statement that it should constitute a part of the contract and of membership. She had not yet been
The judgment is reversed and the cause remanded, with the direction to enter judgment for the defendant.