117 Ky. 651 | Ky. Ct. App. | 1904
Opinion of the court by
Affirming.
This appeal brings in review the judgment of the court
There is another defense based upon á condition in the terms of the policy itself, .and which is as follows: “No obligation is assumed by this company upon this policy until the first premium has been paid, and the policy duly delivered, nor unless upon 'the date of delivery the insured is alive and in sound health.” It is pleaded in the answer that the insured was not in sound health when the policy was delivered, and therefore .it is argued that the policy is void, and never created any obligation upon the company. The policy seems to have been delivered on the 6th of November, 1901, and the insured died in June, 1902. It was not pleaded that there had been any material change in the health of the insured. between the date of the application and the time the policy was delivered. The information obtained by the application and the medical examination necessarily reflates to the family history of the insured, his previous con
There is another reason why the appellant did not show its right to.prevent a recovery upon the policy. The annual premium on the policy was $295.15. If its theory be correct that the insured was not in sound health, and the policy was pot obligatory upon it, then before it could prevent a recovery on the policy it should have tendered back the premium it received. If the policy created no obligation on it, then the company assumed no risk for which it was entitled to be p.aid the $295.15, or any part of it, nor is it entitled to withhold it. It has not earned any part of it. Suppose the company had brought an action to cancel the policy for the reason that the insured was not in sound health when it was delivered. Most certainly would it have been necessary
Tbe judgment is affirmed.
Petition for re-bearing by appellant overruled.