25 Ky.L.Rptr. 1456
Court of Appeals of Kentucky.
Jan. 19, 1904.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by J. R. Bailey against the Pacific Mutual Life Insurance Company.
From a judgment in favor of plaintiff, defendant appeals.

Appellant issued to appellee, on September 2, 1901, a health policy by which it agreed to pay him an indemnity of twenty-five dollars ($25) a week for a period not exceeding 26 weeks, if within a year, among other things, he was continuously disabled and prevented for that length of time from performing any and all kinds of duties pertaining to his occupation by reasons of cerebral apoplexy. In the application for the policy there is this clause: "(5) My occupation and duties required of me are fully described as: (state kind of goods) general merchandise, retail, proprietor." Appellee alleged that he was stricken with cerebral apoplexy on November 3, 1901, and was disabled for the full period of 26 weeks. Appellant denied the allegations of the petition, and in the second paragraph of its answer set up the clause quoted from the application, and alleged that in addition to the general merchandise business the plaintiff "also followed the occupation of a lumberman and contractor with railroad companies in getting out cross-ties and other timbers, and that his duties consequent thereto required him to supervise or oversee employes, travel over and through the country in looking after said business, and doing other things connected therewith, all foreign to the ordinary duties of general merchandise; that the duties connected with the other occupation of the plaintiff, other than those of his occupation of that of general merchandise, very materially increased the risk on the part of the defendant." The court sustained a demurrer to this paragraph of the answer, and, the case being submitted to the jury, the plaintiff recovered the amount sued for.

Section 639, Ky. St. 1903, is as follows: "All statements or descriptions in any application for a policy of insurance shall be deemed and held representations and not warranties; nor shall any misrepresentation, unless material or fraudulent, prevent a recovery on the policy." It is not averred in the answer that the disease of cerebral apoplexy, with which the plaintiff suffered, was in any manner brought about by his occupation as a lumberman or contractor, or that this contributed in any manner thereto. It is not averted that such an occupation was classed in a different way from that of general merchandising, or that it was a more hazardous occupation. It is not alleged that the defendant would not have taken the risk if it had known that the plaintiff was occupied also in getting out cross-ties and other timbers. No fact is pleaded showing that his engaging in this business was material in any way to the risk. The bare allegation that it very materially increased the risk is simply a conclusion of the pleader. The facts should have been stated, so that the court could see from the pleading that the misrepresentation was material to the risk. Were the rule otherwise, any omission in the application, however trifling or unimportant, might be pleaded in an answer in bar of an action on the policy. This would defeat the purpose of the statute. To make a good answer, the defendant must state in its answer facts showing that the misrepresentation was material. This not being done, the court properly sustained the demurrer.

The proof by the defendant on the trial tended to show that the plaintiff suffered from facial paralysis, while the proof for the plaintiff tended to show that the disease was cerebral apoplexy. The great weight of the evidence, and the circumstances shown by it, sustain the verdict of the jury.

There was no evidence on the trial conducing in any way to show that the plaintiff's failure to state that he dealt in railroad ties and timber was in any manner material to the risk. In the brief filed in this court, reliance is placed on the fact that it is shown by the evidence that the plaintiff had had typhoid fever in the spring of the year 1901, and this was not disclosed in the application. But there was no plea of this fact, or of the clause in the application relating to the subject.

Judgment affirmed.

Ky.App. 1904.
78 S.W. 119, 25 Ky.L.Rptr. 1456

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