20 Ind. App. 206 | Ind. Ct. App. | 1898
Appellee, as beneficiary of Henry Brockman, deceased, sued appellant upon'a life insurance policy issued by appellant on the life of said Brockman. The complaint was in three paragraphs, but as a demurrer was sustained to the first, no further notice need be taken of it. In the second paragraph it is averred that appellant, on the 19th day of March, 1892, issued a policy of insurance upon the life of Henry Brockman, in the sum of .$1,000.00, for and in consideration of a certain initiation fee and premium, which were paid; that by the terms of the policy monthly payments, etc., were to be made, on or
The third paragraph of complaint is in all essential respects like the second, differing from it only in some immaterial averments as to the agents of appellant, and the payment to them of dues, etc. A demurrer to each of these paragraphs of the complaint was overruled and such ruling is assigned as error. Counsel, however, have failed to discuss their sufficiency, and hence the question is waived.
Appellant answered in three paragraphs, but no
The overruling of the motion for a new trial is the only alleged error discussed. Appellee insists that the bill of exceptions was not filed in time, and hence the evidence, instructions, etc., are not in the record; but this insistence is not tenable.
Before taking up the questions presented by counsel, we deem it proper to say that appellant’s defense rested upon an alleged violation of the terms of the policy and application, which was made a part of the policy; and the second paragraph of answer averred that in said application, said Brockman stated and warranted that he was ,a total abstainer from the use of intoxicating liquors, and that he did not then, nor would he in the future, “practice any pernicious habit that obviously tended to shorten life,” and that after the policy of insurance was issued, and for several months prior to his death, said Brockman drank intoxicating liquors to excess, which was a “pernicious habit and obviously tended to shorten his life,” whereby said policy was forfeited. It was upon this line that the defense was made, and appellant earnestly contends that the facts disclosed by the record, based upon its answer, will preclude a recovery. Upon this question, however, we cannot disturb the judgment, for the reason that the evidence is conflicting, and the jury having passed upon it, puts it to rest.
In his application for insurance, the decedent Brockman, stated in answer to certain questions, that he had had delirium tremens, and that he had been
The seventeenth reason assigned for a new trial was sustaining appellee’s objection to the following question propounded to Ed. King, a witness for appellant: Q. “State to the jury whether you observed Mr. Brock-man’s habits and conduct previous to the time he went to the asylum, whether or not he was boisterous?” Upon the court’s refusal to permit the witness to answer this question, appellant stated in writing what it offered to prove as follows: “The defendant offers to prove by this witness in answer to this question and others, that he had an acquaintance with Henry Brockman and had seen him both when drunk and sober for a long period of time, and was acquainted with the peculiarities and ordinary actions of said Henry Brockman when drunk; and offers further to prove that said Henry Brockman when drunk never was at any time noisy or boisterous, and that his con
We are not prepared to say whether or not the court, erred in excluding the offered evidence, but it seems clear to us that what appellant offered to prove by the answer to the question to which an objection was sustained, was not responsive. The offer to prove was so much broader than the question, and included so many elements not embraced by the question, that there waseno available error in excluding it. An offer to prove a fact or facts by “other questions” which “other questions” are never asked, is not reviewable in an appellate tribunal. The question asked the witness might have been properly answered, for it asked the witness to state a distinct fact, but where error is predicated upon the exclusion of evidence, the only way to present it is to ask the question, and then it is for the court to determine its competency. When a litigant offers to prove a fact or facts in answer to a question asked of a witness, and “other questions,”
The only responsive and legitimate answer that could have been made by the witness King, to the question asked him, was that he did or did not observe Brockman’s habits prior to the time he went to the asylum, and that he was or was not boisterous or noisy. While it might have been competent for the witness to. answer this question, the error in excluding it, if it was error, was not in our judgment, harmful, for, looking at the whole record, it could not possibly have changed the result. A judgment will not be reversed for a harmless error. Rhinehart v. Niles, 3 Ind. App. 553; Passmore v. Passmore, 113 Ind. 237; Whitworth v. Ballard, 56 Ind. 279.
The fourteenth reason assigned for a new trial was the refusal of the court, over appellee’s objection, to permit J. F. Pancake to answer the following question : Q. “You may state if you ever had any conversation with Henry Brockman in reference to his drinking?” On the court’s refusal to permit the witness to answer this question, the appellant offered to prove in answer to it, that Henry Brockman after the 19th day of March, 1892, frequently talked to witness about his habit of drinking intoxicants. Even if appellant had been permitted to prove what its offer shows, it could not have availed it anything, for the offer does not go
The fifteenth reason assigned for a new trial was in refusing to permit the witness J. S. Anderson to answer the following question: “You may state to the jury whether or not in the constitution, a member may have the right to change the beneficiary?” In answer to this question appellant made in writing the following offer: “The defendant offers to prove by the witness J. S. Anderson that under the constitution of the defendant, The Masons’ Union Life Association, the insured has the right to change the beneficiary in the policy.” “And the defendant further offers to prove by the witness J. S. Anderson, that in the latter part of April, 1894, he visited the insured, and had a conversation with him and that he called the attention of the insured to the fact that he was drinking intoxicating liquors to excess and informed him that unless he quit that the policy would be forfeited,, and the assured said that he would quit drinking intoxicating liquors to excess.” The court did not err in refusing to permit the witness Anderson to answer the question, which forms the basis for the fourteenth reason for a new trial. The question and offer to prove would not have shed any light upon the question at issue. The fact which appellant offered to prove in answer to the question was that the insured, after the issuing of the policy frequently talked to the witness about his habit of drinking intoxicants. . It will be observed that this offer does not seek to show what the insured said about his habit of drinking intoxicants, but only that he talked about it. Conceding, without deciding that appellant had the right to prove what the insured said as to his habit of drinking intoxicating liquors to excess, after the issuing of the
There are two reasons why the latter part of the offer to prove, in answer to the question we are now considering, was properly refused: (1) The question does not embrace what the offer seeks to prove. Where testimony is excluded, the error, if any, can only be made available by asking a pertinent question of a witness, and if objection is made, stating to the court what testimony or evidence the witness will give in answer to the question proposed, and if an objection is made and sustained, an exception must be reserved. Gipe v. Cummins, supra. We discussed this principle under the seventeenth reason for a new trial, and need not advert to it further. (2) In cases of this character it is not competent for the purpose of defeating the rights of the beneficiary, to prove the declarations of the insured, which declarations would tend to prejudice such rights. The rule seems firmly established that where an insurance policy is issued upon the life of one person for the benefit of another, and such beneficiary is named in the policy, it becomes
In Damron v. Penn Mutual Life Insurance Co., 98 Ind. 478, the Supreme Court said: “ £An insurance policy, issued upon the life of a husband for the benefit of his wife, is her property, and an effectual assignment and delivery thereof to another, even during the lifetime of the husband, can be made only by her.7 77
In Kline v. National Benefit Association, 111 Ind. 462, 60 Am. Rep. 703, it was said: “The beneficiary took an immediate interest in the policy, and her rights could not be impaired by any act of the assured performed subsequent to the execution of the policy, for the contract is that of an ordinary insurance company, and not that of a benevolent organization.77
It is next contended that the court erred in excluding certain evidence, offered by appellant, of the witness J. M. Taylor. Taylor was the agent of appellant and who wrote and took the application of Brockman for the policy issued on his life. The question asked of him, and to which the court sustained an objection, was as follows: “State t'o the jury, Mr. Taylor, what, if any, explanation you made to Mr. Brockman at the time the application was written, in reference to the meaning of the expression £that I do not now and will not practice any pernicious habit that obviously tends to shorten life?7 77 In response to this question, appellant offered to prove “that at the time the application was written that it was fully explained to Henry Brockman that the clause in the application, £that he does not now and will not practice any pernicious habit that obviously tends to shorten life,7 included the drinking of intoxicating liquors, and that Henry
Appellant insists that this evidence was admissible, on the theory that the words used in the application were not clear in themselves, and that the court will avail itself of the meaning and interpretation placed upon them by the parties. We cannot agree with this insistence. The application as made was written, and it was the contract between the parties. It is not shown that the words used in the application were not fully understood by the insured, and, in view of the fact that they were not uncertain, obscure or ambiguous, we may correctly presume that the insured fully understood them. Again, all that was said between Taylor and Brockman prior to that time, and up to the time the application was made, was merged in the writing, and the writing speaks for itself.
As appellant’s defense was grounded upon the alleged facts that Brockman used intoxicating liquors to excess, which impaired his health, and was a pernicious habit which obviously tended to shorten life, it was bound to prove such fact; but it was not competent to prove it by conversations that took place between Taylor and the insured prior to the application, and that Brockman understood what the language meant.
It is a part of the common knowledge and observation of human life, that the excessive use of intoxicating liquors tends to shorten life, and each man and woman who has arrived at an age of understanding knows that such excessive use of intoxicants is a pernicious habit. There being nothing ambiguous,
Counsel for appellant next discuss the giving and refusing to give certain instructions, and giving, as modified, certain instructions tendered by appellant. Instruction number four, tendered by appellee, and given by the court, was as follows: “The word warranty means more than an agreement; it means a guaranty. Warranties are not favored in law and nothing can be construed as a warranty except that which was and is plainly and unequivocally declared to be such by the parties.” The first and second instructions tendered by appellant and given by the court are as follows:
(1) “By the terms of the policy in this case the application therein mentioned is made a part of it; the answers in the application are warranties, and if any answer is untrue the warranty is broken and the policy void.” (2) “The agreement of the parties that the statements in the application are true, and their falsity in any respect should avoid the policy, removes the questions of their materiality from the consideration of the court or jury or either of them.”
It is the contention of appellant that these instructions could not be considered or construed together by the jury without leaving them in doubt as to the most important point in the case. It is earnestly insisted by the learned counsel for appellant, that in
It seems to us that the instruction is, however, erroneous in two essentials: (1) In telling the jury that a warranty means more than an agreement, it means a guaranty. In legal contemplation, there is a wide difference between warranty and guaranty, and in the sense in which they are used in the instruction they are not synonymous terms. In the case before us the answers in the application, etc., are made warranties by express terms. They constitute the contract between the parties. In law, the term warranty is an engagement or understanding forming a, part of a transaction. It is an absolute understanding or liability on the part of the warrantor, and a contract of warranty is void unless it is strictly and literally performed. See Rapalje & L. Law Dict. p. 1346. Also White v. Life Ins. Co., 4 Dill. 177, 181; Jeffries v. Life Ins. Co., 22 Wall. 47; Ins. Co. v. Pyle, 44 Ohio St. 19, 29, 58 Am. Rep. 781, 4 N. E. 465. A guaranty is a collateral promise to answer for the debt, default or miscarriage of another, and is distinguishable from an original and direct contract for the promisor’s own
Instructions 1 and 2 tendered by appellant and given by the court, correctly state the law, and put a construction upon the contract. We are unable to understand how the jury could construe these three instructions together without being in doubt as to what the law was on an' important question in the case. The rule is well established in this State that an erroneous instruction is not cured by a correct instruction on the same matter, which is contradictory of a former instruction. Union Central Life Ins. Co. v. Hollowell, Admr., 14 Ind. App. 611; Summerlot v. Hamilton, 121 Ind. 87; McCrory v. Anderson, 103 Ind. 12; McCole v. Loehr, 79 Ind. 430.
When instructions are contradictory and tend to mislead'the jury the judgment will be reversed. State, ex rel., v. Sutton, 99 Ind. 300. Where a fatally erro