109 Ky. 372 | Ky. Ct. App. | 1900
Opinion op the court by
Reversing.
Appellant, on January 28, 1897, issued two policies of insurance — No. 105,895 and No. 105,896 — on the life of William *E. Myers in favor of Ms wife, appellee Hattie M. Myers; one for $1,000, and the other for $1,200. The undertaking of the appellant, as set out in the first policy, so far as matérial, is in these words: “In consideration of the application for this policy and the statements and covenants therein contained, which are a part of this contract, and of the annual premium of $18.30, to be paid in advance to the company at its office in the city of New York on the delivery of this policy, and of the sum pf $18.30 on the 28th day of January, 1898, insures the life of William E. Myers, of Paducah, in the county of McCracken and State of Kentucky, for the term of two years; and in further consideration of the annual premium of $34.30, to be paid thereafter on the 28th day of January in every year •during eighteen years, continues the insurance for the remainder of his life.” One of the conditions of the .policy is this: “If any statement made in the application be in any respect untrue, or if any premiums be not paid when due, this policy shall be void, and all'payments made upon it shall be forfeited to the company.” The application also contained this: “And it is agreed that there shall be no contract of insurance until the policy shall be issued
It is alleged by appellant in its answer that on the return of the notes due in May it canceled the policies, and so entered them on its record; but there was no proof given on the trial N sustain this allegation, except the statement of the local agent as to what he reported to the company; nor was there any proof of notice to Myers of the cancellation of the policies, except such as might be inferred from what took place between him and the agents of the company as above stated. But the proof of these transactions is very clear, being made by several witnesses and undisputed. It is insisted for appellee that the statements of her husband, not being made in her presence, are not competent against her, and can not be considered. It is also insisted that under section's C56 and 679, Kentucky Statutes, appellee’s' rights) must be determined by the stipulations of the policy alone, without regard to anything contained in the application or notes, and that under the case of Montgomery v. Insurance Co., 14 Bush, 51, the ruling of the court below was correct. In the case of Society v. Puryear’s Adm’r (decided to-day), 59 S. W., 15,