26 Ind. App. 182 | Ind. Ct. App. | 1901
This is the second appeal in this case. For the decision in the former appeal, see Masons, etc., Assn. v. Brockman, 20 Ind. App. 206. In the former appeal the judgment was reversed, and when the opinion was certified to the court below, appellee filed an amended complaint in two paragTaphs. While the amended complaint is unchallenged by the argument of counsel, it is necessary to state its material averments for the purpose of showing what the triable issues were.
In the first paragraph it is averred that appellant on the 19th of March, 1892, issued a policy of insurance on the life of Henry Brockman in the sum of $1,000, for and in consideration of an initiation fee and premium, which were paid; that by the terms of the policy, monthly payments were to be made on or before the 20th of each month to appellant’s agent at Columbus, Indiana; that in pursuance
The second paragraph is essentially like the first, except that it specifies the agents of appellant to whom payments of dues were made from time to time, and contains the additional averment that when the last tender of payment was made and refused appellant knew that said Henry Brock-man was in failing health and could only live a short time, and that in order to swindle, cheat, and defraud said insured out of all he had paid, and to avoid the payment of the amount of said policy at his death, directed and instructed its said agents not to accept any more dues or instalments from him, and to inform him that any offer to make such payments would be useless, as the same would not be accepted.
Appellee is named as beneficiary in the policy. Appellant answered in one paragraph, the substance of which is that after the policy in suit was issued, the insured became addicted to drinking intoxicating liquor to excess; that such habit was a violation of the conditions of his application, which was made a part of the policy; that in said ap
The argument of counsel for appellant is confined to alleged errors of the trial court in admitting and in refusing to admit certain evidence, and in giving certain instructions on its own motion, and in modifying and giving as modified certain instructions tendered by appellant. Before entering upon a discussion of the questions relating to the admission of the evidence, it is important to remark that, on behalf of the appellee, evidence was introduced tending to show that the conduct, actions, and demeanor of the said insured at and subsequent to the time appellant canceled the policy, which conduct, actions, and demeanor strongly resembled those of a man under the influence of intoxicating liquor, were the result of disease growing out of la grippe. On the part of appellant it was insisted, and it introduced evidence tending to establish the fact, that such conduct, etc.-, was the result of intoxication. It is also shown by the evidence, and the fact is undisputed, that, prior to the issuing of the policy sued on, the insured was an inebriate and had taken treatment therefor. In his application for a
In its answer, appellant averred that after the execution of the policy, and for several months prior to his death, the insured frequently drank intoxicating liquors to excess, which said use of intoxicating liquors was a pernicious habit that obviously tended to shorten life, and that by such conduct he forfeited his policy. It was upon this theory that appellant refused to accept the payment of monthly dues and upon which it canceled the policy. The promise of the insured that he would not practice any pernicious habit that obviously tended to shorten life was by the express language used made a warranty. By the terms of the policy, the application and the answers to' questions therein are made a part of the contract of insurance. Appellant had a right to show by legitimate evidence, if it could, that after the issuing of the policy the insured drank intoxicating liquors to excess; that such use of intoxicating liquors was a pernicious habit, and that such pernicious habit obviously tended to shorten life. If these conditions existed, they would constitute a breach of the insurance contract on the part of the insured, for which appellant would be justified in canceling the policy. The policy was in fact canceled June 20, 1894.
One J. II. Taylor was called as a witness for appellant. He testified that during the summer of 1893 he was in Columbus, Indiana, where the insured lived; that while there he made his headquarters at the office of one Dr. Hudson; that for two weeks continuously he was in Dr.
Appellant argues that the evidence stricken out was competent and should have gone to the jury upon two grounds: (1) That witness had answered that he testified from his own knowledge of the facts, and (2) that he had a right to testify from the conversations between Brockman and his physician. Appellee urges that as the witness testified that he was not a physician and did not possess medical skill, he could not testify of his own knowledge, and that he
Under the rule stated in Springer v. Byram, supra, which is so firmly supported by the authorities, there can be no doubt but what the evidence of Taylor which the court struck out on appellee’s motion was competent. The evidence went to a' vital question in appellant’s defense as disclosed by its answer. If appellant was being treated for the drink habit, and the witness knew it, either from his own knowledge or from what he heard the insured and his physician say when they were in each other’s presence, it was competent for him so to testify. As to what weight the evidence would have had with the jury is not a question with the court, but we hold that the evidence was competent and that it was error to strike it out. It is the rule that if statements are made in the presence and hearing of a person affecting his rights, and under such circumstances as call for a reply, what he said, or if he failed to say anything, may be proved as in the nature of an admission. Springer v. Byram, supra; Pierce v. Goldsberry, 35 Ind. 317; Puett v. Beard, 86 Ind. 104; Surber v. State, 99 Ind. 71; Broyles v. State, 47 Ind. 251; Conway v. State, 118 Ind. 482. These authorities settle the question under discussion beyond cavil or controversy. The evidence of Taylor, which the court struck out ©n appellee’s motion, was of vital importance to the issue in controversy. The evidence was in direct line with appellant’s defense as set up in its answer.
Appellant’s counsel have ably discussed other questions arising under its motion for a new trial, but we may properly leave them undecided, as they are not likely to arise in a subsequent trial. The judgment is reversed, and the court below is directed to sustain appellant’s motion for a new trial.