The opinion of the court was delivered by
Allen, J.:It is urged on behalf of the insurance company that the statements contained in the application are *668warranties, and that, in case such statements were not strictly and literally true, the policy may be avoided. In support of this contention, the cases of Linz v. Insurance Co., 8 Mo. App. 363, and Benefit Association v. Park, 16 Atl. Rep. 339, are cited. The first case named cites no authorities on this question, and.gave it apparently but slight consideration, as the decision turned on a question of evidence. The other case, decided by the supreme court of Maine, was an action brought to annul a policy before the death of the assured. This case can hardly be said to support the contention of the plaintiff in error. On the other hand, we have the decision of the supreme court of the United States in the case of Mouler v. Insurance Co., 111 U. S. 335, which was an action on a policy of insurance which contained the following provision :
“It is hereby declared and warranted, that the above are fair and true answers to the foregoing questions, and it is acknowledged and agreed by the undersigned that this application shall form part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentation or concealment of facts, then any policy granted upon this application shall be null and void.”
In the application on which the policy was issued, the seventh question asked was, whether the assured had ever been afflicted with any of the diseases therein named, among which were included scrofula, asthma, and consumption. There was evidence tending to show that, at or prior to the date of the application, the insured was afflicted with said diseases, or some of them. The court held that the statements in the application were not warranties, and that
*6691. poney — stated piicaüon — warranties, *668“ It was an erroneous construction of the contract to hold, as the court below did, that the company was relieved from liability if it appeared that the insured was in fact afflicted with the diseases, or any of them, mentioned in the charge of the court. The jury should have been instructed, so far as the matters here under examination are concerned, that the *669plaintiff was not precluded from recovery on the policy unless it appeared from all the circumstances, including the nature of the diseases with which the insured was alleged to have been afflicted, that he knew, or had- reason to believe at the time of his application, that he was or had been so afflicted.”
It will be observed in this case that, in the third condition of the policy, copied in the statement of the case, the answers of the deceased in the application are referred to as statements, and we think the policy under consideration in this ease no stronger in its provisions than that under consideration in the case last above cited. See, also, National Bank v. Insurance Co., 95 U. S. 673; Insurance Co. v. Rundell, 34 N. E. Rep. 538.
Mamie Woods, a daughter of the deceased, testified that she was present when her father made the application on which the policy was based; that “the agent told papa any slight cold or little pain he did not expect him to tell of. He did not expect him to recite every slight pain, and everything in that line.”
3. oonsfrala.’ Complaint is made of the instructions of the court, because, in their general scope, they do not treat the statements in the application as warranties, but directed the jury, in substance, that the applicant was only held to good faith in his answers, and that the policy could only be avoided if he died from a continuance of the identical disease or diseases for which he had been treated before his death. We need not trouble ourselves with the question which was before the supreme court of Maine in the case of Benefit Association v. Park, supra, whether a misrepresentation as to whether the assured was afflicted with a disease named, when death resulted from another and different disease, is a material misrepresentation which will avoid the policy, because the pleadings iu this case charge only that he had the disease of which he afterwards died, and no mention is made of any other or different disease. It is alleged in the answer that he was afflicted with catarrh and consumption, and it is *670claimed by counsel that the consumption of which he died was superinduced by the cold and catarrh contracted prior to the issuance of the policy.
The proofs of death furnished in this case state that the remote cause of death was contracting a severe cold at a revival meeting, about January 1, 1886, with gradual loss of flesh and strength until he died. The proof signed by the plaintiff gives the duration of his last illness about two months, and that he gradually grew worse every day until he died. If the statements contained in the proofs had been correct, of course, the insurance company would have had a good defense ; but it was very clearly shown at the trial that the date given was a mistake, and that January 1, 1887, was intended instead of January 1, 1886. There was abundant evidence to show that Mr. Woods was in usual health and was very actively employed as a Baptist preacher up till January, 1887, when he contracted a severe cold at a revival held at Burrton. The only testimony in the case tending to show that he had any ailment between the 1st of January and the 17th of August, 1886, is that of Dr. J. Gr. Malcolm. He testified that he had called on the deceased professionally several times during that period; that on July 17 the deceased called on him for treatment for a catarrhal affection of the throat and nasal passages, and that he treated him for the same on July 20, 22, 26, August 12 and 21; that he made an examination of his lungs sometime in July, 1886; that he found no evidence of any physical change of the lungs, but could not say there was no such change; that he did not think there was any relation between catarrh and consumption, nor that catarrh of the throat would produce consumption, unless a person has tubercles of the throat or larynx. On cross-examination, the witness stated that his first treatment of Mr. Woods for catarrh was on July 17, 1886, and that he recovered from the disease with which he was afflicted, calling for visits from January 25, 1886, to July 17, 1886. As the jury were told that, if the deceased was being treated for a disease of which he afterwards died, and knowingly gave false answers in his application *671concerning the same, they should find for the defendant, we think the defendant was given at the trial the full benefit of the testimony of the doctor.
2. mntaaea as statements— poucy, not It appears from all the evidence that Mr. Woods was never a robust man. Conceding that he was afflicted with catarrh at the time of his application, it does not necessarily follow, nor indeed would it generally be regarded as probable, that an ordinary case of catarrh would develop into consumption. We think most people are inclined to regard ordinary colds and ordinary cases of catarrh as ailments furnishing no serious cause for alarm, and that, under the testimony in this case, the jury was abundantly warranted . ~ ,, . . pit m tinamg that the statements oi the deceased were made in good faith, and especially so, when he was told by the agent of the company that he need not tell of any slight cold or pain. (Continental Ins. Co. v. Pearce, 39 Kas. 396; Insurance Co. v. Barnes, 41 id. 161; Protective Union v. Gardner, 41 id. 397.)
Complaint is made of certain rulings of the court concerning the admission of testimony. We have examined all of the matters referred to in the brief, and find no error in the rulings of the court, nor anything worthy of particular mention here.
With reference to the third defense, it appears that on the 15th of May, 1888, E, W. Poindexter, the company’s agent for the state of Kansas, called on the plaintiff with a letter from the president of the insurance company to him, which he read to the plaintiff. In this letter, question 19 and the answer thereto were quoted, and attention was called to the statements in the proof of death that the disease was caused by consumption, caused by taking a cold at a revival meeting January 1, 1886. The letter further stated that the case had been fully considered by the committee on insurance, which had decided against the claim, and directed that the premiums paid on the policy, with interest, be refunded, and directing the agent to make a tender of this sum. The plaintiff testified that she then told him that there must be a mis*672take with reference to the dates, and she asked him to see Doctor Malcolm; that in the afternoon he returned, said he had seen Doctor Malcolm, and that Doctor Malcolm thought there was no other way; that she had better accept the proposition; that Poindexter also offered to make a liberal donation out of his own pocket; that he seemed to want to help her, and gave her $73 only, in a cheek, which was the amount of the premium and interest. The plaintiff further testified, that she signed the receipt on the policy relying on Poindexter’s statement that she could not recover, and that Doctor Malcolm had advised her to take it. Very soon after this transaction Poindexter was arrested, and the policy was left at the Bank of Hutchinson under an agreement, so that the plaintiff might have access to it to make copies if she desired to sue on it. Poindexter was then discharged, and the check was tendered-back to him.
The jury were instructed that, if they found that the plaintiff accepted $71.17 in full satisfaction of her claim against the insurance company, and that her acceptance was upon a full and complete and fair knowledge of her rights of recovery, then the jury should find for the defendant; but unless they should find that the plaintiff was fully apprised of all her rights with reference to recovery, and that the plaintiff' was' in no manner overreached or deceived by the defendant, or induced to engage in any settlement that she would not have engaged in had she been fully apprised of her rights, then the jury should find that there was no settlement made. This instruction is subject to criticism for using the word “rights” rather than the words “facts affecting her rights.” It is argued that the plaintiff had as good an opportunity to be, and was in fact, as fully informed with reference to all the facts as the defendant, and that she is presumed to know her legal rights as well as the defendant knew them. The facts in this case do not show anything like duress, but legal duress is not always necessary to entitle a party to relief in equity. In Pomeroy’s Equity Jurisprudence (§950), it is said:
“ Courts of equity undoubtedly grant relief in many classes *673of instances where there is no legal duress, and where the wronged party would perhaps be remediless at the common law, but these cases properly belong to the head of ‘ undue influence.5 55
In Story’s Equity Jurisprudence (§239), the author says:
“ Cases of an analogous nature may easily be put, where the party is subjected to undue influence, although in other respects of competent understanding. . . . Circumstances also of extreme necessity and distress of the party, although not accompanied by any direct restraint or duress, may in like manner so entirely overcome his free agency as to justify the court in setting aside a contract made by him on account of some oppression or fraudulent advantage or imposition attendant upon it.”
4. obtaiMdby tablfraiiefi’ We do not think that in this case it was neeesssary for the plaintiff, in order to avoid this settlement, to prove either strict legal duress or actual fraud. The facts of the case were, that she had a claim against the insurance company tor $1,000. A mistake of a year had been made in stating in the proof of death the date when her husband contracted the disease which resulted in his death. The letter of the president of the defendant company charged her deceased husband with falsehood and misrepresentation in the application for insurance. This charge, coming so recently after his death, when backed up by Poindexter’s statement that he had learned from Doctor Malcolm that the statements in the proofs of death were correct, were well calculated to influence the plaintiff’s action. Expressions of friendly interest by the company’s agent, and the promise of a donation from his own pocket, may have had some influeneepn her, and she was induced to accept the small sum of about $70 in discharge of $1,000. In such a ease this court would be very loth to set aside the findings of a jury, where there were any circumstances at all fairly tending to show that she was overreached by artifice, or subjected to any undue influence in obtaining the settlement. We find no error in the record warranting a reversal of the judgment, and it is therefore affirmed.
All the Justices concurring.