73 Ind. App. 207 | Ind. Ct. App. | 1920
This action, by appellee against appellant, was on an accident insurance policy, issued July 24, 1916, by appellant to appellee. The policy, together with the application therefor, was made a part of the complaint. To the complaint appellant answered in two paragraphs, the first being a general denial, and the second averring in substance: That the policy was issued upon a consideration of $4, and a premium of $2 per month, and a written application in which appellee agreed as follows:
“I hereby apply for a policy to be based upon the following representations of fact. I understand and agree that the right to recovery under any policy which may be issued upon the basis of this application shall be barred in the event that any one of the following statements, material either to the acceptance of the risk or the hazard assumed by the company is false.”
That among the representations of fact appellee represented as follows:
“I have never received indemnity for any accident or sickness except as follows: No exceptions.”
That in truth and in fact appellee had received, prior
From Illinois Commercial Men’s Association: March, 1914, $42.86; August, 1914, $50.00; April, 1915, $46.42; June, 1916, $37.50. From United Commercial Travelers, $35.10; from Middle States Indemnity Co., $60.00.
That therefore appellee’s warranty that he had never received indemnity for any accident before making application for the policy sued on was false, but that appellant had no knowledge of the falsity of such statement, but believed the same to be true and relied thereon, and was thereby deceived and induced to issue such policy, which it would not have issued but for such false representation. That appellant did not discover the falsity of such representations made by appellee in such application until the-day of February, 1917, and thereupon appellant canceled such policy, refused to continue the same, or to receive any further monthly premiums of $2 provided for in said policy. That the entire amount paid by appellee to appellant for fees and premiums was the $4 policy fee, and $2 per month for six months after the issue of the policy, in all, $16; that prior to the discovery of appellee’s fraud and the cancellation of the policy appellee claimed indemnity for a slight injury in the month of August, 1916, which claim was allowed and $16.67 paid to appellee by appellant on account of said injury, said sum being sixty-seven cents in excess of the amount of the fees and premiums which appellant would be required to return to appellee upon the cancellation of said policy because of appellee’s fraud in securing the same.
Appellee demurred to the sécond paragraph of answer, with memorandum, which demurrer was sustained. Thereupon appellant withdrew its general denial, and
The judgment is reversed, with instruction to the trial court to overrule the demurrer to the second paragraph of answer, and for further proceedings.