124 Ky. 569 | Ky. Ct. App. | 1907
Opinion op the Court by
Eeversing.
On November 16, 1903, Louis C. De Lang applied to the Illinois Life Insurance Company for a policy of insurance on Ms life in the sura of $2,000, payable to his father, Felix Y. De Lang. The application was accepted, and the policy issued on November 28, 1903, the first premium being then paid. The insured died on October 22, 1904, and, the company having declined to pay the amount of the policy, this action was instituted by Felix Y. De Lang to recover on it. The company defended upon the ground that certain.statements of the insured in his application were untrue, and that it was thereby induced to issue the policy, when, if the truth had been stated, the application would have been rejected. The ease was tried before a jury, who found for the plaintiff, and, judgment having been entered upon the verdict, the insurance company appeals.
So much of the application as is1 relied on to defeat a recovery on the policy is as follows: “ (16) Except as mentioned above, have you or any of your grandparents, uncle's, aunts, parents, brothers or sisters ever had consumption or tuberculosis in any form? Ans. No. * * * (22) Has change of residence, occupation or climate ever been sought or advised for the benefit of your health? Ans. No. * * ■ * (25) Has there been more than five pounds variation in your weight the last two years? Ans. No. * * * (29) Have you ever used spirituous or malt liquors freely or to excess? Ans. No. (30) What is your
The defendant introduced proof showing that in the year 1902 the insured lived in Chicago, and toward the latter part of the year was in very bad health; that he lost weight, had an habitual cough, shortness of breath and night sweats; that he could not walk erect, was very haggard looking; that his feet were swollen; that he said that he had consumption, and that he could not walk upstairs to deliver
The court set out in an instruction in part the questions and answers above quoted from the application, and then said as follows: “The law of the case is for the plaintiff, and you should find for the plaintiff the sum of $2,000 with interest thereon at the rate of 6 per cent per annum from the 12th day of December, 1904, unless you believe from the evidence that the
The insured’s wife was a competent witness, for the plaintiff. She did not testify as to any communications between her and her husband. She may testify as any other witness as ta the health of her husband, or as to what he did, or as to any other matters not involving communications between her and her husband growing out of the marital relation. "We see no>objection to the testimony which she gave in the case to the effect that her husband did not have this or that symptom at a certain time. No witness,
Judgment reversed, and cause remanded for a new trial.