Knights Templar & Masons Life Indemnity Co. v. Dubois, 26 Ind. App. 38

Knights Templar & Masons Life Indemnity Co. v. Dubois

26 Ind. App. 38 | Ind. Ct. App. | 1900

Henley, J.

This action was commenced by appellee to recover against appellant on a policy of insurance issued by appellant on the life of one George M. Dubois, the husband of appellee, which policy was payable to appellee at the death of the insured. A demurrer was filed to the complaint and overruled. Appellant then filed an answer in two paragraphs. To the affirmative answer appellee filed a general denial. The cause was submitted to a jury for trial, which resulted in a verdict for appellee, and over appellant’s motion for a new trial, the court rendered judgment upon the verdict.

The errors assigned are (1) that the court erred in overruling appellant’s demurrer to the complaint; (2) that the court erred in overruling appellant’s motion for a new trial. Under the first specification of the assignment of errors, counsel for appellant urge that the complaint is insufficient because a copy of the application is not filed with the complaint. A copy of the policy of insurance was filed with and *39made a part of the complaint, and this, we think, was all that was necessary. It has been held in several cases by the Supreme Court of this State that it was not necessary in an action upon a policy of insurance to make the application a part of the complaint. This point was decided in the following cases: Continental Ins. Co. v. Kessler, 84 Ind. 310; Penn, etc., Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769.

Under the second specification of the assignment of errors, counsel for appellant first discuss the sufficiency of the evidence to sustain the verdict. The action being founded upon a policy of insurance issued by appellant upon the life of one George M. Dubois, it was necessary that the policy of insurance should be introduced in evidence, and it is contended that the policy of insurance was not introduced in evidence; that all that was done by appellee Upon the trial of said cause was to offer in evidence the policy of insurance, and that this offer was all that the record shoVre was done. The bill of exceptions shows the following: “Plaintiff offers the policy of insurance in evidence, which is marked plaintiff’s exhibit A, and which reads as follows.” Immediately following this offer there appears in the bill of exceptions a policy of insurance issued upon the life of George ML Dubois and payable at his death to the appellee, also the application and the medical examiner’s report. It will be further noticed that no objection was made to the introduction of the policy of insurance in evidence. The bill of exceptións begins as follows: “Be it further remembered that on the trial of said cause the following evidence was introduced by the parties respectively, and the following offers to prove, the rulings of the court made thereon, and the objections and exceptions thereto were saved by the parties respectively, to wit.” And at the close of the bill of exceptions is the following' recital, which is signed by the judge of the trial court, “and this was all the evidence given in the cause.” The objection made by counsel for appellant is extremely technical, and upon a casual *40examination would seem to be supported by the authorities. But a careful examination of the cases cited shows that they are distinguishable from the case at bar, and that this case is in every respect similar to the case of Harris v. Tomlinson, 130 Ind. 426. In the case last'cited, the bill of exceptions recites in its introductory clause that the plaintiff “to maintain the issue on his part and behalf introduced the following testimony.” And in every instance the term “offered in evidence” is used where the term “introduced in evidence” should have been used; but at the close of the bill of exceptions was a statement that this was all the evidence given in the cause. The bill of exceptions also showed that in connection with each instrument given in evidence, the word “offered” appeared where the word “introduced” should have been used. But it was held by the court that inasmuch as the record affirmatively showed that all the evidence offered was introduced and constituted a part of that which the bill said was all the evidence given in the cause, that the bill was not fatally defective on that account. The facts as stated above are presented by the record in the case under consideration and they are distingxiishable from the facts presented in the cases of National Bank v. Lock, 132 Ind. 424; Peck v. Louisville, etc., R. Co., 101 Ind. 366; Fellenzer v. Van Valzah, 95 Ind. 128 and Lyon v. Davis, 111 Ind. 384.

Considering the policy of insurance as introduced in evidence, we must hold that there was evidence to sustain every material averment of appellee’s complaint, and that the evidence was sufficient to sustain the verdict and judgment.

It is next objected by counsel for appellant that the court erred in giving to the jury certain instructions. We have carefully examined all the instructions, and, taken as a whole, they certainly present appellant’s case in as favorable a light as the law will justify. Every statement of law contended for by appellant was in a pointed manner brought *41to the attention of the jury. We very much doubt if the right result was reached by the court and jury in the trial of this cause, but the record does not present any reversible error. The judgment is therefore affirmed.