Security Life Insurance v. Booms

CONREY, P. J.

On or about October 12, 1910, Mary L. Young made application to appellant for an insurance policy upon her life, to be issued in favor of her daughter, Lena M. Scott, who is the respondent, Lena M. Scott Booms. In that application she agreed that' the statements therein made by her were full, complete, and true, and should in the absence of fraud be deemed representations and not warranties. It was further agreed therein that the policy should not take effect until acceptance of the application and payment of the first premium. Payment of the first premium was completed and the policy was delivered on the eighteenth day of November, 1910. The application contained answers to questions asking whether the applicant had theretofore had any of certain named diseases, the list not including typhoid fever. The following question was: “Have you had any illness, disease, or injury other than as stated by you above 1” to which a negative answer was returned. In February, 1911, Mrs. Young was afflicted with appendicitis, and after an operation therefor she died. On or about the third day of November, 1910, Mrs. Young became ill with typhoid fever. The disease ran its course in about ten or twelve days, and she was substantially recovered therefrom on the eighteenth day of November. The evidence does not show that the appendicitis was in any way consequent upon the typhoid fever, and we shall assume that the two diseases were entirely separate and

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disconnected. After proof of death of Mary L. Young had been made in connection with respondent’s claim on the policy, the plaintiff commenced this action to obtain cancellation of the policy, basing its demand upon the allegation that at the time said application for insurance was accepted by the plaintiff, and also at the time when the premium was paid and the policy delivered, Mary L. Young was not in good health, but was then and there seriously ill. It was further alleged that immediately upon being informed of the condition of the said Mary L. Young’s health and illness as above stated, which was not until after the death of said Mary L. Young, the plaintiff tendered to the defendant the amount of the premium paid and demanded return of the policy for cancellation, which demand was refused. By her answer respondent denied said allegations as to illness of Mrs. Young; denied that the plaintiff did not learn of Mrs. Young’s illness until on or about the twenty-third day of November, 1911, but alleged that plaintiff was fully advised of such illness during the time thereof, to wit, between the third and eleventh days of November, 1910; alleged that such illness existed only between the third and eleventh days of November, 1910. The defendant filed a cross-complaint, seeking to recover judgment on the policy, to which an answer was filed setting up the same facts as were alleged in the complaint. Judgment was entered to the effect that the plaintiff recover nothing on its complaint, and also was in favor of the defendant as demanded in her cross-complaint. The court’s findings of fact state that Mary L. Young was in good health from the tenth day of October, 1910, until the third or fourth day of November, 1910, and that she was in good health on the eighteenth day of November, 1910; also that the application for insurance was accepted on the first day of November, 1910, and that the policy was delivered and the premium paid on the eighteenth day of that month.