130 Ky. 397 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
When Michael J. Qninn died in 1906 there was an insurance policy on his life issued by the appellant company for $1,000, payable to his wife, Mary Quinn. After the death of the insured, the company denied its liability under the policy, because it claimed that in the application for insurance among the questions propounded to the applicant was whether or not he had ever applied to any other company for insurance and been rejected or postponed, to which he answered “No,” that this answer was material and was untrue. After interviewing the widow, she and the appellant-company agreed upon a compromise of the claim, by which it paid to her the sum of $750 in full of her claim under the policy in question. The company owed her $116 on another policy, and this was not in dispute. Thereupon it paid to the appellee the sum of $866 in full settlement of both of her claims against it, and the following receipt was issued:
“Form 25.
“Claimant’s Receipt. $866.00. Compromise Settlement.
Louisville, Ky., April 26, 1906.
“Whereas the Western and Southern Life Insurance Company, of Cincinnati, Ohio, issued its policies 32776 andl0289A on the life of Michael J. Quinn, and*400 whereas certain differences and disputes exist as to the liability of said company under said policies: Now, for the purpose of compromising rnd settling the said disputes and differences, the sum of eight hundred and sixty-six dollars has this day been paid to- me, receipt of which I hereby acknowledge in full satisfaction, settlement and discharge of all liability of said company under said policies and the same is now herewith surrendered.
“(Signed) Mary Quinn.
“Witnesses:
(“Signed) M. J. Brady,
“ Alex Altsman,
“George A. Boissard.”
After nearly nine months had expired from the date of this receipt, this action was instituted by the widow to recover the balance of $250 alleged to be owing her under the policy which had been compromised, and alleging that the compromise had been obtained by fraud, misrepresentation, and deceit. The company demurred to the petition because it did not allege the payment, or tender back, to the insurance company of the amount received by the plaintiff under the compromise. The general demurrer was overruled by the court, and then the company answered, denying the fraud. Upon a trial of the case before a jury a verdict was returned in favor of the plaintiff for the sum of $250. Thereupon the defendant entered a motion for a judgment non obstante verdicto, which was overruled. It also filed a motion for a new trial, which was overruled.
The evidence showed without-question that prior to the application of Michael J. Quinn for the policy in dispute he had applied to another company for insurance, and had been rejected, and that' his answer in
We are of the opinion that the question between appellant and appellee as to the liability of the former under the policy was one about which, reasonable men. might entertain a substantial doubt; and, this being so, the compromise can not be said to have been without consideration. The evidence fails entirely to show the slightest fraud or imposition practiced by the com pany or its agents upon the appellee. As to this, we can accept her own statement. The company had proposed to compromise the matter, and offered her $500, and then she said: “They claimed that, if I didn’t take something, it would be one way or the other, and I said, ‘You come back to-morrow, and I will make up my mind what I intend-to do,’ and I asked them if they would give me $750, and they wanted to give it to me willingly, and I accepted it. I did not know whether I was entitled to it, but I thought that I had paid one year’s premium, and that I Avas entitled to it. They only intended to give me $500, and the next day I asked them if they would give me $750, and- that was the agreement. ’* It thus appears that the agents of the company were only contending for the right of their employer to dispute the validity of Mrs. Quinn’s claim under the policy. This they had a legal right to do; and, when they proposed to give her $500, she declined to accept at once, but took time to consider it, and the next day herself offered to take $750 in compromise, and the company acquiesced. She also shows that the agents of the company, when they offered to settle for $500, told her to consider the matter and* let them know in
In addition to all this, the petition was fatally defective in failing to state that the plaintiff had paid, or tendered back, the amount received under the compromise. This action was instituted to set aside and vacate the compromise for- fraud and misrepresentation. In order to accomplish this, it was necessary
Judgment reversed, with directions to set aside the order overruling the motion for a judgment non