51 Ind. App. 285 | Ind. Ct. App. | 1912
— This is a suit by appellee, the sole beneficiary of an insurance certificate issued by appellant to James Edward Collins, husband of appellee, to recover on such certificate. This is a second appeal, a former judgment in appellant’s favor having been reversed by this court on account of the error of the lower court in giving a peremptory instruction in appellant’s favor. Collins v. Catholic Order of Foresters (1909), 43 Ind. App. 549, 551, 88 N. E. 87. A trial by jury resulted in a verdict for appellee, with which were returned answers to interrogatories. Motions by appellant for judgment on the answers to interrogatories and for a new trial were overruled, and exceptions to each ruling saved by appellant, after which judgment was rendered on the verdict for appellee. The rulings on said motions present the errors on which appellee relies. As no question is presented on the pleadings, we need only set out enough of their substance to present the questions which are relied on for reversal.
The complaint is the usual complaint in such cases, and avers that on December 3, 1903, decedent, James E. Collins, signed a written application for membership in said order, his acceptance by the order, his initiation as a member of St. Joseph Court No. 1109, the issuing by the order on December 23, 1903, of the benefit certificate in suit for $1,000, with appellee as its beneficiary. The application for membership, together with the medical examiner’s certificate thereon and the written approval of J. P. Smyth, M. D., high medical examiner of said order, and the certificate of insurance, are made part of the complaint.
It is further averred that the certificate was not. delivered to Collins, but was delivered to the St. Joseph Court, and kept by it; that Collins died April 6, 1904; that at the time of his death, decedent was a member in good standing in
(1) “Q. Have you ever had any severe illness or injury, dr under gone any surgical operation ? A. First finger index right hand. (2) Q. State when, give particulars, and name of your attending physician? A. Have not been sick since childhood. Diseases of childhood. (3) Q. Have you fully recovered? A. Yes. (4) Q. Have you had any of the following complaints, diseases or symptoms? Any disease of the lungs? A. No. (5) Q. Spitting or raising blood? A. No. (6) Q. Any disease of the bowels? A. No. (7) Q. Habitual cough? A. No. (8) Q. La Grippe? A. No. (9) Q. When and for what has medical advice been sought within the last three years ? A. Nothing. (10) Q. Is there anything to your knowledge or belief, in physical condition, family or personal history, or habits, tending to shorten your life, which is not distinctly set forth in this application? A. No.” The answer avers, in substance, thát relying on the truth of these answers the insured was accepted by the order, and the certificate of insurance issued; that by the terms of the contract the insured expressly warranted said answers to be true, that they were, in fact, false, etc.
Judging from the court’s statement of the facts of the for
The certificate sued on promises and binds appellant to pay appellee the sum of $1,000, subject to certain “express stipulations and conditions” therein set forth, which are, by the express terms of such certificate, made part thereof. The conditions and stipulations, controlling the questions here presented, are as follows: “ (1) The statements made by said member in the proposition blank signed by him at the time of his proposal as a member of said Catholic Order of Foresters are- hereby acknowledged and declared by him to be warranties and to be made a part of this contract. (2) The representations and agreements made and subscribed by him in the application and medical examiner’s blanks and the answers given and certified by him to the medical examiner are hereby acknowledged and declared by him to be warranties and to be made a part of this contract. ’ ’
Again, in that part of the application for membership
In the application for membership, following the statements of the insured himself, he made a like statement, with additional language as follows: “Or should any concealment of facts be made by me in this application. * * * I do hereby forfeit,” etc.
The controlling question presented by the errors relied on by appellant in the court’s ruling on each of said motions is, in effect, the same, the question being presented in the first motion by the facts found by the jury in its answers to interrogatories, and in the second motion by the facts disclosed by the evidence. We will, therefore, in discussing the ruling on the first motion indicate the legal principles which we think controlling in the case. These principles are:
(3) In construing this contract in its entirety we are admonished by the frequent expressions of this court and the Supreme Court, and by the courts of other jurisdictions, that warranties “are not to be created or extended by construction.” They must arise, if at all, from the fair interpretation and clear intendment of the words used by the parties. Where there are contradictory provisions, ambiguities or uncertainties, or where the contract has been so framed as to leave room for construction rendering it uncertain or “doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract,” the court should favor that construction which will relieve the assured of the obligation of a warranty. Indiana, etc., Ins. Co. v. Rundell, supra; Moulor v. American Life Ins. Co., supra; First Nat. Bank v. Hartford Fire Ins. Co., supra, 678; Northwestern, etc., Ins. Co. v. Hazelett (1886), 105 Ind. 212, 216, 4 N. E. 582, 55 Am. Rep. 192; Rogers v. Phenix Ins. Co. (1890), 121 Ind. 570, 576, 23 N. E. 498; Metropolitan Life Ins. Co. v. Johnson (1911), 49 Ind. App. 233, 94 N. E. 785, 788. (4) If the answers of the assured in his application can be construed as representations merely, they need be only substantially true, so far as such representations were material to the risk, but if they
* * * ‘While it may well be that a misrepresentation of a matter which does not affect the risk, and is not material in some cases, as is claimed, will not avoid the policy, and whether it is material is a question for the jury, such rule has, we think, no application where, by the terms of the policy, misrepresentations are converted into warranties by a stipulation that an untrue answer will avoid the policy. ’ ’ ’ Cerys v. State Ins. Co. (1898), 71 Minn. 338, 339, 340, 73 N. W. 849. See, also, Cobb v. Covenant, etc., Assn., supra; Miller v. Mutual, etc., Ins. Co. (1871), 31 Iowa 216, 232, 7 Am. Rep. 122.
The contract, when read in its entirety, contains no contradictory or doubtful provisions. The language of the several provisions above quoted is clear, certain and positive that the answers of the assured in his application for membership shall “each and all” be treated as true in fact, and that the assured “warrants said answers and each one of them to be true in fact”, and agrees that in ease any answer is untrue all rights of himself and his beneficiary, including all claims and demands by virtue of the benefit certificate, are forfeited. One of the express conditions on which the certificate was issued was that said answers were by the acsured “acknowledged and declared by him to be warranties and to be made a part of this contract.”
If it could be said that, under the language of the contract, the answers could be treated as representations, they are by the terms and language of the contract converted into warranties so far as their materiality is concerned, and controlled by the line of cases cited under legal proposition five, given above, which prevents the question of the materiality of such answers being a question of fact for the jury trying the cause.
The particular interrogatories, and the answers thereto, relied on by appellant as presenting the facts so antagonistic to and inconsistent with the general verdict as to entitle it to judgment on its motion, are as follows:
“(21) Did James Edward Collins seek and obtain the advice and services of physicians for physical ailments at any time from Dee. 3, 1900, up to December 3d, 1903 ? A. Yes.
(22) Did Dr. Hugh Cowing, of Muncie, Indiana, treat professionally James Edward Collins, and perform an operation on him for piles during his married life with plaintiff, before December 3rd, 1903 ?
A. Yes.
(26) Did James Edward Collins, within the period of three years, prior to December 3rd, 1903, seek medical advice and attention for physical ailments ?
A. Yes. * * *
(30) Did James Edward Collins seek medical advice and attention and obtain medicine from Doctor William J. Malloy, for some physical ailment on October 10th, 1903 ?
A. Yes. * * *
(41) Did Dr. Henry M. Winans make an examination of James Edward Collins, microscopically examining the sputum of said Collins, on March 12th, 1901, for tuberculosis?
A. Yes. * * •
(44) Did Dr. Henry M. Winans examine the sputum of James Edward Collins for tuberculosis once subsequent to March 12th, 1901, prior to December 3rd, 1903?
A. Yes.” In so far as these answers to interrogatories affect, or are claimed to affect, or to be inconsistent with, the answer of the assured to any question other than No. 9, given above, we think the former opinion controlling and the law of the ease. As to all the other answers made by the
The answers of the jury to interrogatories twenty-one, twenty-six and thirty make the questions presented, in so far as the answer of the assured to question nine, given above, is affected, and shown by such answers of the jury to be false, entirely different from that presented by the former appeal. In commenting on this answer, and the evidence relied on to show its falsity in the former appeal, this court said:
“The question asks ‘for what has medical advice been sought,’ not what medical treatment has been received, and the question evidently means, for what has the insured sought medical advice ? The evidence does not disclose that whatever medical treatment was given to the-insured was at bis solicitation, or that it was sought by him.” Collins v. Catholic Order of Foresters, supra.
The above answers of the jury to interrogatories twenty-one, twenty-six and thirty seem to supply the very fact which this court held in the former appeal was absent, and which it also held was required to show that such answer of the assured was necessarily false. In our judgment, the former opinion, impliedly at least, settled the question as now presented, and would be authority for our holding that the answers to the interrogatories show said answer of the assured to be false, and that therefore there has been a breach of the warranty as to such answer. This conclusion is supported by authorities cited under points four and five, given above. See, also, United Brethren, etc., Society v. O’Hara (1888), 120 Pa. St. 256, 266, 13 Atl. 932.
If the motion for judgment on the answers to interroga
It follows that there was no error committed in overruling this motion.
It follows that the verdict of the jury was not sustained by sufficient evidence, and that for this reason appellant’s motion for a new trial should have been sustained.
The inconsistency between the general verdict and the answers of the jury to interrogatories would indicate that they did not regard answer nine, given above, of the assured in his application for membership as materially affecting the risk of insurance, and that such answer should not, therefore, prevent a general verdict in appellee’s favor. It may not, therefore, be improper to remark in this connection that, in our judgment, the ends of justice would be best subserved if, in all cases of this character, the statements and answers of the assured could be construed as representations merely, which need be only substantially true in so far as they materially affect the risk. In many states there has been legislative enactment to this effect, but in our own State there has been no such legislation, and inasmuch as it is the court’s
Judgment reversed, with instructions to the court below to grant appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.
Note. — Reported in 99 N. E. 745. See, also, under (1) 3 Oyc. 395; (2, 4, 7) 29 Oyc. 86; (3) 29 Oyc. 67; (5) 25 Oyc. 805; (9) 29 Oyc. 92; (10) 38 Oyc. 1927; (11) 29 Cyc. 252; (13) 29 Oyc. 244; (14) 29 Oyc. 251. As to the distinction between warranties and representations by the party to be insured, see note to Continental Life Ins. Co. v. Yung (Ind.), 3 Am. St. 636. As'to the significance to be attached to attendance by and consulting a physician, in an applicant’s statement on inquiry before the issue of policy, see 3 Am. St. 637. Oonclusiveness of prior decisions on subsequent appeals, see 34 L. R. A. 321.