199 Ky. 133 | Ky. Ct. App. | 1923
Opinion op the Court by
— Reversing.
This is the third appeal of this case. The opinion in the first one is reported in 177 Ky. 445, and in the second one in 193 Ky. 19. An examination of them will show that there was involved in each of them the single question as to the right of the appellant, and defendant below, New York Life- Insurance Company, to rely on the defense interposed of false and material answers made by the insured, Anthony F. Long, in his application for the policy on his life sued on and in which the plaintiff and appellee, Dianah B. Long, was the beneficiary. The policy was issued in the state of Wyoming on March 5, 1910, and was for the- sum of $1,500.00. The insured died in September following and in December, 1916, this action was filed in the Logan circuit court by the plaintiff to recover the amount thereof. Neither the application nor a copy thereof was attached to or incorporated in the policy and the trial court rejected the defense of false answers to material questions therein, although it was claimed by the company that no statute in the state of Wyoming required the application or a copy thereof, in order to be available, to be attached to the policy, and that ruling of the court was reversed in its opinion on the first appeal.
It 'will be observed that none of the questions for decision on this appeal were in any wise involved on either of the two former ones, and therefore no question as to “the law of the case” is presented. The principal grounds urged for a reversal of the judgment are (1), the refusal of the court to sustain defendant’s motion for a directed verdict in its favor; (2), incompetent evidence introduced by plaintiff; (3), error in the instruction given by the court, and (4),.error of the court in refusing an instruction offered by defendant.
In the application which plaintiff signed he was asked and answered a number of questions among which were, whether he had ever been connected directly or indirectly with the manufacture or sale of intoxicating liquors, to which he gave a negative answer. He was further asked if he had ever used any such liquors to excess, followed by a similar answer; also what illnesses, diseases or accidents he had suffered since childhood and he answered that he had an attack of typhoid fever in 1895 and that he had not consulted or been under the care of a physician since that date. Those questions and answers are the substance of the ones upon which the defense is based, it being alleged in the answer that they were each • false and material to the risk and that the policy would not have been issued had the questions been correctly answered, the truth being that about two years before the policy was issued the insured became afflicted with chronic alcoholism and was treated for that affliction for several weeks at Beechhurst Sanatorium in Louisville;
This court in a long and unbroken line of decisions has construed section 639 of our statutes in part to mean that if the representation made in an application for a policy is false and is material to the risk, it will avoid the policy whether intentionally or innocently made. In other words, the element of fraud on the part of the applicant is not necessary to render his representations material, if in fact they are so and whether or not they are material is dependent upon the fact as to whether reputable insurance companies generally in the conduct and management of their 'business while acting reasonably according to the usual practice among life insurance companies would have accepted the application and issued the policy sued on had it known the facts. If so the representation mil be classed as immaterial, but if not so then it is regarded as material and will avoid the policy if false. One of the latest oases so holding and in which a number of others are cited is Security Life Insurance Co. v. Black, 190 Ky. 23. Another compara
The instruction given by the court submitting the issues of the case, and of which complaint is made, was erroneous in several particulars. It required the jury not only to believe that the representations were made and that they were false, but also that they were fraudulently made. In other words it permitted the jury to find that the representations were, perhaps, not made, or if so that they were not false, and finally, that notwithstanding the jury might find that the representations were made' and that they were false, yet the instruction directed a recovery if the jury should find that the representations were not fraudulently made. The instruction in the particulars pointed out was in direct conflict with the cases, supra, in some of which it became necessary in writing the opinion to' state that the proper practice in such cases was to incorporate in the instruction the questions with the answers relied on as a defense and to state to the jury that those questions and answers are contained in the application for the policy, and to follow that statement with a submission to the jury of the issue as to whether the answers were substantially untrue and whether or not the defendant acting reasonably and naturally in accordance with the usual practice among 'such insurance companies would not have accepted the application and issued the policy if the substantial truth had been stated and if the jury so believed it would then return a verdict for defendant. Some of the cases, supra, directly so hold, among which are Blenke v. Citizens National Life Ins. Co., 145 Ky. 332, and Providence Savings Life Assurance Co. v. Dees, 120 Ky. 285. Defendant offered such an instruction in this case which the court on objection by plaintiff declined to give, but which should be given if the evidence on another trial is such as to require the submission of the issue to the jury.