39 Ind. App. 586 | Ind. Ct. App. | 1906
Issues were closed by an answer in three paragraphs, each of which is based upon the following statements contained in the application by the assured, upon which the policy in suit was issued: “(28) Have you ever been intemperate in the use of either malt or spirituous liquors, or used any drug habitually? A. No. (29) Do you use either malt or spirituous liquors daily, or nearly every day ? If so what is used, and the proximate amount? A. No.”
Appellee replied “to the amended first, second and third paragraph of defendant’s answer” in three paragraphs, the first of which was a general denial. The second and third paragraphs of reply were both unsuccessfully challenged by demurrers for want of facts, and such rulings are assigned as errors.
The reply is directed to the answer as an entirety, but the averment of the second paragraph of reply is, aside from such consideration, that the defendant’s agent, with full knowledge of the habits of the assured as to the use of intoxicating liquors, solicited and procured the application, in which the statements relative to that subject, shown to form the basis of the defense, were made; that he heard the questions asked and the answers made, and with full knowledge of all the facts delivered said policy, and thereafter' collected two separate instalments of premium thereon.
Judgment affirmed.