84 S.W.2d 43 | Ky. Ct. App. | 1935
Affirming.
This is an appeal from a judgment of the McCracken circuit court sitting in equity, under which the plaintiff, Brasier, was adjudged to recover the sum of $1,000 on a policy of insurance by which the defendant agreed to pay him the sum of $50 per month in the event that he became totally and permanently disabled *241 during the life of the policy. Plaintiff is suffering from an inguinal hernia that he claims to have developed in October, 1932, after the policy in question was issued. It is not claimed that the plaintiff in his present condition is not actually totally and permanently disabled. The appellant's only grounds for reversal are: (1) That plaintiff is not totally disabled within the meaning of the policy because the condition of which he complains might be cured by an operation; and (2) that plaintiff actually suffered a hernia prior to the date of application for the policy and falsely stated in the application that he had never had a hernia.
Appellant relies principally upon the case of Cody v. John Hancock Mutual Life Ins. Co.,
"But we have never gone so far as to apply the doctrine of minimizing damages * * * to a policy of insurance."
The opinion likewise refers to and quotes from the case of Marsh v. Peoria Life Ins. Co.,
The insurance company introduced a witness who testified that the insured had complained to him about being ruptured in 1930, prior to the date when this policy was issued, and that he was present when insured removed his truss. The reputation of this witness was impeached by several others. Plaintiff denied his testimony, and there was other conflicting evidence on the question. We think that the weight of the evidence was in accord with the decision of the chancellor and that plaintiff did not have a hernia prior to the date of the application for, or issuance of, the policy.
Judgment affirmed.