138 Ky. 359 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
This action was brought by the appellee as the beneficiary in two policies of life insurance issued by the appellant company to her mother, Mary Herlihy. One of the policies, for $1,000, was issued on the 30th of March, 1908, and the other for $3,000 was issued on April 20, 1908.
The company set up several defenses; one being that the insured in her application falsely and fraudulently stated that the only insurance then upon her life was $240 in the Prudential Life Insurance Com
It appears from the evidence that the insured was a widow in humble circumstances, and that she did not own any property or have any income on her own account. She had two children, a son and a daughter who lived with her, and these children, who worked for a living- and earned small wages, contributed to her support. The insured died in July, 1908, and between July, 1907, and her death obtained insurance in the following companies: On August 5, 1907, $2,000 in the Western Indemnity Company; on December 13, 1907, $2,000 in the Western Reserve Life Insurance Company; on December 28, 1907, $2,000 in the Intermediate Life Assurance Company; on February 7, 1908, $2,000 in the Western Reserve Life Insurance Company; on March 26, 1908, $1,000 in the Southern States Mutual Life Insurance Company; on April 20, 1908, $4,00.0 in the Southern States Mutual Life Insurance Company; on May 20,. 1908, $2,000 in the Limited Term Life Association. She also held a policy of $240 in the Prudential Life Insurance Company, but when this policy was issued does not appear. It was also shown that about December, 1907, she made application to the Pacific Mutual Life Insurance Company for $2,000, which was rejected, and that in June, 1908, the insured executed her note to one Cora M. Smith for $1,000, payable one day after date, and to secure the payment of this note there was pledged to Cora M. Smith the policy for $1,000, and that a few days after the death of the insured Cora M. Smith accepted $160 in satisfaction of her note. It was also shown that diligent efforts were made by the appellant company to secure the personal attendance as a witness
right to avail itself of the facts disclosed by the record that might, if admissible as evidence, defeat a recovery? On the trial of the case the appellant offered in evidence . both the applications and the medical examination made when the first insurance policy was issued, but the court upon objection of counsel for appellee excluded them, as well as evidence of their contents, and the ruling of the court upon this question is really the chief error relied on.
Each of the policies recites that: “In consideration of the representations made in the application here-for, and of the sum of $-, first annual premium in advance, and o.f a like sum on the-■ day of -next hereafter, insures the life of Mary Herlihy. * * * ” This is the only reference in either of the policies to the application. Neither of the applications nor the medical examination were attached to or made a part of the policies. The first application offered shows that the insured, in answer to the question, “How much insurance she had on her life?”
Section 679 of the Kentucky Statutes reads, in part: “All policies or certificates hereafter issued to persons within the commonwealth by corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, * * * either as forming-part of the policy or contract between the parties thereto or having any bearing on said contract, shall contain or have attached to said policy or certificate a correct copy of the application as signed by the applicant, * * * and unless so attached and accompanying the policy, no such application * * shall be received as evidence in any controversy between the parties to or interested in said policy or certificate, and shall not be considered a part of the policy or of the contract between such parties.” In cases
But, conceding that under the statute these papers were not competent evidence, it is yet insisted that it was admissible to permit the agent, who took the applications, and the medical examiner, who received the report signed by the insured, to testify as to the contents of these papers; in other words, to state the answers that the insured made to certain questions asked her. In support of this proposition, the
We know of no authority, nor have we been referred to any, that would justify parol evidence of the contents of these papers, and the court properly excluded it. Considine v. Metropolitan Life Ins. Co., 165 Mass. 462, 43 N. E. 201; 1 Cooley’s Briefs on Insurance, p. 686; Fidelity T. & T. Co. v. Illinois Life Ins. Co., 213 Pa. 415, 63 Atl. 51. If the company by its failure to make the application and medical report a part of the policies as required by the statute has deprived itself of the evidence these papers would furnish, it has no one to blame but itself. And so it was not error to refuse instructions offered by the company saying, in substance, that if the insured at the time she made the application, was suffering with and knew she had some disease of the heart or kidneys, or dropsy, and fraudulently concealed this fact from the company or its agents, or falsely represented that she had not been rejected by any company or made a false answer as to the amount of insurance she carried, and but for such concealment and false answers the policies would not have been issued, they should find for the company. With the applications and the medical report out of the case, the policies contained the only contract between the
But, although the company could not defeat a recovery upon the ground that the insured in the applications made false and material answers, this condition of affairs did not deprive it of the right to make the defense that the. insured was not in truth the person who made application for the insurance and who was in fact examined, or the defense that the insurance was procured as a part of a conspiracy entered into between the insured and others who had no insurable interest in her life for the purpose of practicing a fraud upon the company. These defenses were based upon facts existing independent of the matter contained in the application. The failure to comply with the statute denied the company the right to resist tlie payment of the policies upon defenses arising out of the application. It did not prevent it from showing that in other respects outside of the matter contained in the application the policies had been voided. If a person other than the insured made the application and was examined, there was, of course, no contract at all between the company and the insured. And so, if the insurance was obtained as a part of a conspiracy entered into by persons having no insurable interest in the life of the insured, the contract was illegal, against public policy, and non-enforceable. These two defenses the company
It is further insisted that the motion for a peremptory instruction asked at the conclusion of the evidence should have been sustained. This contention is based upon the fact that at the time the motion for a peremptory instruction was made no reply had been filed to the third and sixth paragraphs of the answer, charging that the insured had entered into a conspiracy with other persons who had no insurable interest in her life, with the fraudulent purpose of obtaining the insurance under an agreement with the insured that these persons should pay the premiums and receive the benefit of the policies. When the motion for a peremptory instruction was made, the defendant tendered an amended reply to paragraphs 3 and 6 of the answer, and thereupon the motion for a peremptory instruction was overruled, as was the motion to discharge the jury and grant a continuance. The record shows that before the reply was filed the plaintiff entered a general demurrer to the second, third, fifth, and sixth paragraphs of the answer, and that the demur
"Wherefore the judgment of 'the lower court is affirmed.