Kalaher's Administrator v. Independent Life Insurance

Court of Appeals of Kentucky

Kalaher's Administrator v. Independent Life Insurance

189 S.W. 211, 172 Ky. 289, 1916 Ky. LEXIS 193

DecidedNovember 21, 1916

StatusPublished

This text of 189 S.W. 211 (Kalaher's Administrator v. Independent Life Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kalaher's Administrator v. Independent Life Insurance, 189 S.W. 211, 172 Ky. 289, 1916 Ky. LEXIS 193 (Ky. Ct. App. 1916).

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Opinion

Opinion op the Court by

Judge Clarke

Affirming.

On the 21st day of July, 1909, appellee issued a policy upon the life of Edward McMahon for $2,000.00 in which Mrs. Kate Kalaher, an aunt of the insured, was named as beneficiary. McMahon died on October 13th, 1909, and the company having refused to pay the policy upon receipt of proof of his death, Mrs. Kalaher instituted this action against the company to recover the amount of the policy. The company resisted payment upon the ground that McMahon had fraudulently procured the issuance of the policy by mating false statements in his application upon which the policy was issued as to the condition of his health and of his family history, and that he had not in fact been examined by the company’s physician, but that some other person: had béen substituted at the examination; that at the. time of the examination and issuance of the policy Me-' Mahon was not in good health as represented, but was suffering from tuberculosis of the lungs -in an advanced, stage. Mrs. Kalaher died during the pendency of the action, and it was revived in the name of her administrator. The trial by a jury resulted in a verdict for ap-" pellee and appellant’s petition -was dismissed.

[290]*290The only ground presented for a reversal is that two of the instructions given by the court are erroneous. Prom a careful consideration of the entire record we are of the opinion that the pleadings and the evidence authorized the giving of both of these instructions, and that there was no error prejudicial to appellant’s substantial right in either, but it is not necessary for us to give our reason for so holding because of the fact that it does not appear in the record that appellant either objected or excepted to any of the instructions given, and we are therefore not authorized to review the action of the trial court upon the only question of which complaint is made.

Wherefore the judgment is affirmed.

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Opinion op the Court by

Judge Clarke

Affirming.

On the 21st day of July, 1909, appellee issued a policy upon the life of Edward McMahon for $2,000.00 in which Mrs. Kate Kalaher, an aunt of the insured, was named as beneficiary. McMahon died on October 13th, 1909, and the company having refused to pay the policy upon receipt of proof of his death, Mrs. Kalaher instituted this action against the company to recover the amount of the policy. The company resisted payment upon the ground that McMahon had fraudulently procured the issuance of the policy by mating false statements in his application upon which the policy was issued as to the condition of his health and of his family history, and that he had not in fact been examined by the company’s physician, but that some other person: had béen substituted at the examination; that at the. time of the examination and issuance of the policy Me-' Mahon was not in good health as represented, but was suffering from tuberculosis of the lungs -in an advanced, stage. Mrs. Kalaher died during the pendency of the action, and it was revived in the name of her administrator. The trial by a jury resulted in a verdict for ap-" pellee and appellant’s petition -was dismissed.

[290]*290The only ground presented for a reversal is that two of the instructions given by the court are erroneous. Prom a careful consideration of the entire record we are of the opinion that the pleadings and the evidence authorized the giving of both of these instructions, and that there was no error prejudicial to appellant’s substantial right in either, but it is not necessary for us to give our reason for so holding because of the fact that it does not appear in the record that appellant either objected or excepted to any of the instructions given, and we are therefore not authorized to review the action of the trial court upon the only question of which complaint is made.

Wherefore the judgment is affirmed.

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189 S.W. 211, 172 Ky. 289, 1916 Ky. LEXIS 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalahers-administrator-v-independent-life-insurance-kyctapp-1916.