50 Ind. App. 630 | Ind. Ct. App. | 1912
— On January 2, 1908, appellant issued a policy on the life of John R. McGinnis, with Emily S. McGinnis, his wife, as beneficiary, who brought this action to enforce its payment.
A demurrer for want of facts, to the complaint in one paragraph, alleging facts usual in such cases, was overruled, and this ruling is assigned as error.
The overruling of appellant’s motion for a new trial is assigned as error. Under this assignment the only questions presented by appellant’s brief are, that the verdict is not sustained by sufficient evidence, and that it is contrary to law.
In support of these causes for a new trial, appellant insists that the policy was never in force, for the reason that by its terms it did not go into effect unless the first premium was actually paid during the lifetime and good health of the insured.
There is such a provision in the policy, as claimed by ap
In the case of Penn Mut. Life Ins. Co. v. Norcross, supra, it is said on page 386: “There being no effectual denial of the fact of delivery, the question arises whether the pleading of a breach in the conditions contained in the application and in the policy prevented the latter from having any inception. It is obvious that, no matter how resolutely a party declares beforehand that he will not be bound except by a contract of a specified character, yet, if he afterwards makes a contract in disregard of his declaration, his prior provision will avail him nothing. * * * The provisions of a formal contractual writing, which a corporation has caused to be signed and placed in the hands of an agent for delivery, may be waived by the act of the agent himself, if he have sufficient power in the premises, or it may be the result of silence upon the part of the officers of the corporation after it had constructive knowledge of its agent’s act in delivering the contract, at least where resolute good faith required a timely disaffirmance of his act. ’ ’
It is further insisted that the evidence shows that the insured procured the policy through false representations as to his health and physical condition, also that the trial court erroneously excluded certain evidence offered by appellant tending to prove that certain representations in the insured’s application were false.
By the clause in question, appellant took one year for the purpose of investigating and determining whether it would exercise its right to repudiate and rescind its contract, on the ground it is now interposing as a defense. If it had exercised any diligence, and the insured’s physical condition was that now claimed by appellant, it might easily have discovered such condition within the time reserved by it for that purpose. If it failed to exercise vigilance in this respect, it must be treated as having waived its right to deny liability on such ground. Kline v. National Benefit Assn. (1887), 111 Ind. 462, 11 N. E. 620, 60 Am. Rep. 703; Court of Honor v. Hutchens (1909), 43 Ind. App. 321, 82 N. E. 89; Reagan v. Union Mut. Life Ins. Co. (1905), 189 Mass. 555, 76 N. E. 217, 2 L. R. A. (N. S.) 821, 109 Am. St. 659, 4 Ann. Cas. 362; Clement v. New York Life Ins. Co., supra.
Judgment affirmed.
Note. — Reported in 97 N. E. 1018. See, also, under (1) 25 Cyc. 917; (2) 25 Cyc. 863; (3) 25 Cyc. 726; (4) 31 Cyc. 532; (5) 25 Cyc. 873. As to tlae general rule that notice to the agent is notice to the principal. See 24 Am. St. 228.