*1 5G6 Did, “Q51. you? aiding he have A. abetting hold his brother Robert
Yeah, I wrongful hold of him. striking Bray. was Mr. Yeah, “Q52. you? he A. Was hold of evidence did not giving warrant the of such up. scuffling. Commonwealth, trying get We Patton v. was instruction. 771, 160 S.W.2d you “Q53. get up you Could while were no, A. he For fighting? judg- there the reasons couldn’t we think the Well, hardly up. get reversed, ment should be and it is with di- proceed- rections to set aside and it “Q54. say, you? you While I could ings opinion. consistent with this No, ground? A. I there on were myself I get up by while was didn’t ** * up. They ground. holp me B. “Q56. jury whether Tell the J. you during all the time
Smiddy hold of Smiddy striking you with was Robert this, Well, suppose was. pistol? A. just up up together, hugged
We was locked of him and he was together. I was hold * ** hold of me. INS. CO. v. LIFE METROPOLITAN you “Q59. you, were I understand If TANNENBAUM. each other all Robert hold of you? Smiddy striking A. Yes. Aft- was Appeals Court my getting gun, hold er I ran back from up it, we clinched me to then Bob beat until was hold of one another there and beating me in the back.”
Bob went appellant and his brother were Smiddy Robert left jointly.
indicted appellant State, was alone. tried so testimony, Bray’s ap Mr. According to drinking go
pellant refused to was him to do when he ordered so.
'home during Bray which Mr. followed
scitffle Smiddy gun and Robert came in lost his proof
possession it. There is appellant his brother come ever asked assistance, anything or that he did
to his arrest. resist an There were
other than to appellant spoken between the
no words Bray appellant and the
Robert. Mr. scuffling and were
holding each other on to striking All ground. done was apparently,
by Robert, of his reasons Mr. Bray between
own. appellant got started before Robert continued thereafter. There is
gun and
nothing that Robert’s to show obtention of any bearing gun on or connection appellant’s actions.
with the
circumstances, improper we think was jury. The ver
submit appellant found
dict shows covering the instruction
guilty under
Bell, Orr, Stagner Green, Bowling & for appellant. Myers, Bowling Green,
Rodes K. appellee.
STEWART, Justice. Appellee, Tannenbaum, Rebecca insti- this áction in tuted the Warren circuit appellee, Metropolitan court to recover of Company, Life Insurance $2000 August of insurance on’ husband, life of her Sam Tannenbaum, beneficiary. with her Judgment was rendered in her favor the face amount In- Company appeals. surance appellant alleged answer procured the execution Sam delivery policy to him because son, Herman, and, Bowling Insurance Com- while in filed with the signed 1944, Green, Bass, Albert July soliciting agent application dated pany his appellant, him sold suit. *3 answers, that insured could neither read and nor write and and following questions testified each Bass that he inserted insured in the answers by the the ansiwer questions to of all in Part A and and material: was false instance application exactly B of the as the insured of present condition your What is “6. gave them him. to Bass also said that he "Good”. Ans. health?” originally intended to sell Tannenbaum sick?” Ans. last (a) “7. When “Jan. non-medical but when he discovered of last sickness?” “(b) Nature 1940.” Tannenbaum was age over the limit for “Cold”, “3 long sick?” How “(c) Ans. type of insurance him he advised he days.” would have to be insured on the basis of you been told Have ever (a) “16. a medical examination. Ans. “No.” any heart trouble?” you He went then with Tannenbaum to Dr. for, or you treated ever been Have “(b) Hoy Green, Bowling Newman of an au- pressure?” had, high blood you told that appellant, thorized medical examiner of “No”. Ans. approved Tannenbaum for the in- your usual address of Name and “17. surance and who testified at the trial that Martin, Ans. “Dr. attendant?” medical when examined Tannenbaum he seemed Bellville, Ill.” appearance from good all to be in health. any of the you Have even “18. was delivered to the insured * * * complaints or diseases? following by Bass three or four weeks later. The * * * of Asthma, Disease Bronchitis 30, insured died on March 1945. The im- ** * * * Lungs Disease of Heart coronary mediate cause his death was of * * * * * * Colic Cough Habitual myocardosis occlusion due chronic and to * * * * * * Rheumatism Pleurisy bronchial asthma. dura- dates and yes, particulars, give If testimony Appellant’s chiefly deals “No”. tion.” Ans. history health and of Tannen- clinics, hospitals, physicians, “23. What during two-year period preced baum any, practitioners, if have healers or other ing policy.. the date issuance by, within or been treated you consulted Company produced The Insurance evidence none, If so state.” years? past five in the form of a letter secured it from Brooklyn, Hospital, Moses “Beth Ans. Spector, signed and Dr. H. I. deceased N. Y.” Louis, trial, at the time .St. Mis “Diagnosis: Hernia” Spector wrote he first souri. Dr. 6, 1943, December at examined insured on Herniotomy’' “Treatment: complained of which time he days 1929” and Duration: “Date breath, walking because of shortness excellent” “Results: and also afflicted with he stated he was stipulation following em- also dizzy spells. physical A coughing and application, in the to-wit: braced check-up of harsh Tannenbaum revealed certify hereby (1) that: have read “I lungs throughout sounds both and breath in Part tendency emphysematous toward hereof, signing, they (2) before and Part B type went (bloated) of chest. Tannenbaum written, correctly given by been 12, 1943, Spector back to on December Dr. full, complete, and they are true me (3) 1944, 14, 1944, 7, January on on March exceptions there are (4) 17, May on for re-examination other than as stated here- such changes which did reveal in.” x-ray condition the better. A flat Spector trial the evidence showed was taken of Tannenbaum Dr. At the Green, 22, 1944, Bowling May came to which disclosed evidence Sam bronchitis, emphysema (enlarge Belleville, Illinois, of chronic Kentucky, visit from date of the of is- lungs), and the date structures ment of the small intervened, suance probable (dilatation of bronchiectasis month however, ample tubes); the insurer time gave bronchial at larger vestigate applicant. application, time, and the blood count other tests says, she patient possibility enough information ruled out the any investigation furnish a Spector Dr. basis for asthma. Tannenbaum visited decide make. July The last Furthermore, patient September issued the vol- time he was on insured saw the attempted 20, 1944, untarily and never at physical con and Tannenbaum’s *4 cancel it. unimproved weight dition still and was pounds.
was down to 117 foregoing The amount contentions Contending policy had been rendered nothing up more than conclusions based void at the time of the death of the in- speculation. pure controlling point sured, for the reason that Tannenbaum Company here not what the is Insurance applying in for the insurance had upon done practice have to avoid the questions ap- false to the deception deception answers it of but whether or not plication risk, actually that were material practiced to the was it. We have Company return Insurance offered to deciding that the evi beneficiary premiums paid all of the dence in this case is sufficient to that show totalling $84.96, acceptance thereon questions answers to the above are which was refused. false. The next is whether or provides: KRS 296.160 “All statements materiality not was the answers descriptions
or
application
for a
proven.
properly
point
rule
policy of insurance shall be deemed and
is
that
false answer is material if
in
representations
held
and not warranties.
surer,
reasonably
acting
naturally in
and
Misrepresentations, in
un-
an application,
practice
accordance with the usual
of life
they
fraudulent;
less
are material or
shall
companies
insurance
under similar circum
prevent
recovery
not
policy.”
on the
stances,
accepted
ap
not
would
have
just
quoted
section
plication if the substantial truth had been
Court
uniformly
has
held that material
Covert, supra;
stated. The Maccabees v.
misrepresentation
an.
Chamberlain v. National Life & Acc. Ins.
policy, though
made,
insurance
innocently
Co.,
548,
Ky.
628;
256
Sovereign
76 S.W.2d
that,
will avoid it and
although the mis Camp,
McDaniel,
Ky. 212,
O.
v.
251
W. W.
representation may
material,
yet
if
581;
64 S.W.2d
Life Ins.
Commonwealth
fradulently
will,
by
the insured it
Co',
Adm’r,
Goodknight’s
763,
v.
Ky.
212
nevertheless,
policy.
avoid the
The Mac
123;
S.W.
and
v. Citizens’
280
Blenke
Life
Covert,
cabees v.
Ky. 481,
302
194 S.W.2d
Co.,
Ky.
Ins.
145
S.W.
140
498; Prudential
Company
Appellant
testimony
introduced the
Lampley,
Ky. 495,
America v.
297
S.W.
180
Weidenfeller,
Clarke
life underwriter for
399;
2d
Men’s
Business
Assur. Co. of
Company
the Insurance
since
whose
Conley,
v.
America
Ky. 375,
280
133 S.W. duty
of reviewing
approving
consists
and
554;
2d
and Ford v.
Life
Commonwealth
applications
ordinary
for intermediate and
Co.,
Ins.
tions (cid:127) gained from question. knowledge him. each been would by the'agent to the argues even if Appellee insurer, qiiote again argues. Here we A and Part questions in Part stipulation agreed from the false, the application are in fact B'in the “No point, namely: on this controls Com by the Insurance medical examination knowledge by, and no statement made by him filling pany’s doctor out of, any agent, medical examiner a non- changed from Part C per- person as to facts one, Part A so a medical medical to be considered taining to shall auto Part brought to the been made having only matically out cancelled C unless stated thereafter. controlled Part C applica- B of this in either Part or Part specious reasoning is because This line tion.” expressly re agreement itself *5 principle It a well established is not is implication. Part futes such C law in that where limitations of state application this part and never became of the authority soliciting agent’s are con policy; incorporated into the attached in is application, the the tained insured page but 1 embraces the itself bound to take notice thereof and cannot application contract the con the insurance company the hold bound for acts the solely of by of Part sisting limitations, agent beyond such nor can language: an agent by such bind principal an act Policy is issued consideration “This which waiver conceals information in therefor, Application the of which copy the the material to risk. Com Application is attached hereto made Bruner, Life monwealth Ins. Co. v. 299 hereof, payment the and of the Ky. 408; 185 S.W.2d Ins. Prudential premiums provided.” hereinafter Lampley, supra; of America v. Co. Con Morever, Roberts, agent necticut Fire Ins. neither the nor the Co. v. 226 any 148; 11 change medical examiner could of the S.W.2d and Prudential Ins. provisions any Ky. 802, Jenkins, of the manner or Co. of America v. 162 290 any make be S.W.2d 791. would bind assurances ing upon the Insurance because opinion It our that the pro7 evidence following agreement of the contained in in, firmly duced this case the establishes by insured, application signed the to- the falsity representations of the by agent, any medical examiner or “No wit: materiality sured in the person, except the Officers misrepresentations to the risk under power Company, have behalf disputed not a fact. There- make, (a) Company: modify or dis fore, the circuit court should have directed charge (b) contract of insurance or jury appellant. find for the Compány by any promises making bind the reached, In view of the decision we have respecting any policy benefits under unnecessary it becomes to consider hereunder.” by complaint appellant raised relative to the appellee brief counsel for instructions mentioned In his its brief. admits in this case clearly that the record shows Wherefore, judgment is reversed agent appellant failed to in- proceedings for further consistent herewith. in the the correct clude an- applica- certain in the swers to LATIMER, (dissenting). Justice notwithstanding the tion, fact that Tan- agree majority opinion I can the truth to agent furnished nenbaum Therefore, company insurance herein. instance. each insured ' say: may privilege is our charged with It our not be should acts select
571 tq privilege respect upon. select 'our such authority of an agent; it is our through agent or apply See doctor. must Standard examiner. by Russell, our Auto examined agent our selected and be Association 199 v. ques- Ky. Multiple complex S.W. 628. doctor. selected applicant in though the tions are asked and opinion I am of the that the refusal'to truth, agents answering our tells give effect to the limitation apply should es- answers as writing then instead of pecially in cases where the insurer itself falsify answers, responsibility rely solely does not applicant’s, not ours. therefor is goes but further and re- corresponding quires re- placing This is medical examination. In privilege event sponsibility examining the one with the It, physician agent. selecting .of naming principal. should agent and reality, soliciting C.J.S., Insurance, See 45 makes both the P. § applicant. agents of the doctor the Whether or truthful or false agents made to the should be I think the correct rule is found in Am. question the jury. Insurance, “Apart from Jur., Section 846: For these I respectfully reasons dissent. attempt of the effect of an Chief Judge CAMMACK and authority of to limit the its insurer Justice join COMBS me in dissent. stipulations appli- agent by inserted in by- provisions in its cation or MOREMEN, laws, statute, supported (concurring). rule Justice *6 weight authority if great the is that an I compelled am to concur with the ma- for drawn insurance is jority opinion, not for the reason that I am insurer, agent of the fills false an accept willing to legal philosophy there- interrogations contained answers to affirmed, only but opinion, because the truthfully therein which are answered presented, under the clearly facts and suc- collusion, insured, fraud, or ac- without cinctly applies the rules of conduct which insured, knowledge of the or exis- tual were in at force which tence circumstances from con- signed and the medical examination was falsity knowledge of such structive had. rely him, to cannot foe the insurer legal All standards or should be rules falsity seeking answers in of such subject definition, and, after having been liability under to avoid practical according defined to the wisdom of generally The view era, acquire should stability. some In agent making out taken is that the the modern important life it is sometimes more insurer, and that acts for the rules, to know recognize than to estopped insurer is therefore asser.t penalty reasons behind them. The for the or, mistake as has been said some ¡breach crystal always of the rule is clear cases, deemed the mistake to be waived so, therefore, rigid, the rule itself the insurer.” sharp. should be lucid provision The instant imply do rule of should ; law to, by, no or the effect that statement changed, not be when the reason for part agent, knowledge on extinct, rule has or become when the rule person “as examiner reasoning. the result of A change unsound pertaining facts should' (under system jurispru- our of' having been made considered -as be only- dence) should made after notice of brought character, abruptly some after part in either stated unless rights parties of the have vested under application.” existing law. case, holding case, By the Roberts cited Prior to the as con- Roberts we opinion, preexisting law. The trolling majority juris- minority overruled court believe that we-should give refused to effect to a return to diction limitation expressed in earlier thought original prin- correct cases, I believe was time, I However, feel at this ciple. decisis of stare doctrine demands tendency which I outweigh any
.join them. Movant, BROCK, v. COMMON-
Walton Opposed. Kentucky, WEALTH of Appeals of
Court of London, Weaver, for & movant.
Lewis Atty. Gen., F. Funk, Simp- Wm. A. E. opposed. Gen., for
son, Atty. Asst.
PER CURIAM. appeal from the Laurel for Motion Judgment of conviction Court. Circuit liq- possession intoxicating having in territory. option local $100 sale in uors days jail. fine and *7 Judgment affirmed.
Appeal denied. v. COMMONWEALTH.
GRANT Appeals of
Court of