177 Ind. 578 | Ind. | 1912
Suit by appellee against appellant, a New York corporation, on a life insurance policy. The complaint was in two paragraphs. A several demurrer to each paragraph, for insufficient facts, was overruled. Answer in four paragraphs, the first of which was a general denial. Appellee filed a several demurrer to each paragraph of answer. The demurrer was sustained to the fourth paragraph and overruled to the second and third. No ruling was made on the demurrer to the first paragraph.
The errors assigned here, and not waived, consist of the action of the court in overruling the demurrer to each paragraph of the complaint, and overruling the motion for a new trial.
In the first paragraph of complaint it is alleged, among other things, that on December 19, 1905, 'appellant, in consideration of a certain premium, executed and delivered to appellee’s decedent the life insurance policy sued on, which is filed with the complaint as an exhibit.
It is further alleged that decedent, Brinsen, died intestate in Delaware county on February 21, 1906, and on March 26, 1908, appellee was appointed as administrator of his estate; that at the time of Brinsen’s death the policy was in full force; that during his lifetime he performed all the conditions of the policy required therein by him to be performed, and, since his death, appellant has performed all conditions required therein by it to be performed; that appellant had knowledge of Brinsen’s death within ten days thereafter; that on March 26, 1908, appellee notified appellant of Brinsen’s death, and demanded blanks for proofs of death, required by the terms and conditions of the policy; that appellant, before and at the time it furnished blanks, denied any liability under the policy, solely because, it declared, Brinsen committed suicide; that on April 29, 1908, before the commencement of this suit, appellee made out and delivered to appellant proofs of Brinsen’s death, as required by the blanks furnished by appellant, and as required by the terms of the policy, and demanded payment of the amount of the policy, which was refused.
The second paragraph is the same as the first, together with the following added averments: Appellant did not make proof of Brinsen’s death earlier, because Brinsen had no relatives living at Muncie, where he died; that none of
Among the terms and conditions of the policy are the following:
“First. If the insured within one year from the issue hereof die by his own hand or act, whether sane or insane, the company shall not be liable for a greater sum than the premiums which have been received on this policy. * * * Sixth. Proofs of death shall be made to the home office in the manner and to the extent, required by blanks furnished by the company; and shall contain answers to each question propounded to the claimant, physicians and other persons indicated in the blanks, and shall further contain the record and verdict of the coroner’s inquest, if any be held. The proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company.”
The policy did not contain any provision relating to the time of furnishing proofs of death to the company.
The sole reason urged by appellant against the sufficiency of either paragraph of complaint is the alleged unreason
In Insurance Co. of North America v. Brim, supra, it was said that what constitutes reasonable notice must depend on all the circumstances of the particular case; that the purpose of the notice is to enable the company to take proper precaution for its own protection. It was further said in the course of the opinion (p. 287), relative to the facts in that case: “It is sufficient to say, since it does not appear that the company made any objection to the claim on account of the insufficiency of the notice, or that any detriment resulted to it on account of the delay, the notice was, under all the circumstances, reasonably in time.”
In Provident Life Ins., etc., Co. v. Baum (1867), 29 Ind. 236, it was held that ignorance of a provision of the policy on the part of plaintiff excused a delay in giving notice of the death of the insured, where the plaintiff did not have access to the policy.
In Peele v. Provident Fund Soc. (1897), 147 Ind. 543, 44 N. E. 661, 46 N. E. 990, it was held, in a suit on an accident policy, which provided that in the event of injury or death of the assured, notice thereof should be given within ten
2. In Trippe v. Provident Fund Soc. (1893), 140 N. Y. 23, 35 N. E. 316, 37 Am. St. 529, 22 L. R. A. 432, the court said: “Such condition in a policy of insurance must be considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery in ease of loss by requiring the parties interested to do something manifestly impossible.”
In Cady v. Fidelity, etc., Co. (1908), 134 Wis. 323, 113 N. W. 967, 17 L. R. A. (N. S.) 260, it was said: “In case of the person required to give notice not being able to do so from any cause, compliance with the requirements as to notice is sufficient if notice be given as soon as practicable after the disability is removed, unless there, is some unmistakable stipulation in the policy to the contrary. * * * That the rule adopted applies in case of a beneficiary who fails to give notice of the injury and death of the assured till the lapse of considerable time thereafter because of ignorance of the existence of the policy, without fault on the part of such beneficiary, is grounded in reason and supported
The next of kin of decedent were ultimately entitled to the proceeds of the policy subject to the lien thereon in favor of his creditors. Appellee was entitled to receive payment from the company. The policy fixed no time for filing' death proofs. Under the allegations of the second paragraph of complaint, neither appellee nor any one of the ultimate beneficiaries had any knowledge of the fact of the existence of the policy until a few days before proofs were made. We think the circumstances here alleged excused the long delay. Munz v. Standard Life, etc., Ins. Co. (1903), 26 Utah 69, 72 Pac. 182, 62 L. R. A. 485, 99 Am. St. 830, and note 837; Globe, etc., Ins. Co. v. Gerish (1896), 163 Ill. 625, 45 N. E. 563, 54 Am. St. 486; Phillips v. Umted States, etc., Soc. (1899), 120 Mich. 142, 79 N. W. 1; Forsyth v. City of Oswego (1908), 191 N. Y. 441, 84 N. E. 392, 123 Am. St. 605; Jennings v. Brotherhood Accident Co. (1908), 44 Colo. 68, 96 Pac. 982, 18 L. R. A. (N. S.) 109 and note, 130 Am. St. 109; Hilmer v. Western Travelers, etc., Assn. (1910), 86 Neb. 285, 125 N. W. 535, 27 L. R. A. (N. S.) 319 and note.
At the trial, over appellant’s objection, the court admitted in evidence the written proof of decedent’s death, made by appellee, pursuant to the terms of the policy. This proof was on a printed blank, containing questions, designed for answer, by the claimant. Question 12 in such printed blank was as follows: “Cause of death? (Give full particulars).” The answer of appellee, administrator, was as follows: “Morphine or opium poisoning, from unknown cause, but not administered or taken by decedent’s own volition, in effort to commit suicide.” (Italics ours.) The proof was signed and verified on behalf of appellee company, by one Ellis, its vice-president. At the proper time appellant, by its requested instruction two, sought to have the jury informed as follows: ‘ ‘ There has been presented for your consideration as evidence on behalf of the plaintiff and introduced by the plaintiff, a document purporting to constitute the proofs of death of the insured, Jonathan M. Brinsen. There are certain facts stated in this document, but I charge you that the document itself is not evidence of the truth of such facts.”
The requested instruction was refused, and appellant excepted to such action of the court, and, contends here, that it constituted reversible error.
In the instructions given the jury, the court failed to give the equivalent of the one requested, and, in fact, failed to in
Other questions are presented, but as they probably will not arise on another trial of the cause, they are not considered.
Judgment reversed, with instructions to grant appellant’s motion for a new trial.
Note.—Reported in 98 N. E. 513 and annotated in 41 L. R. A. (N. S.) 285. See, also, under (1) 1913 Cye; Ann. 2803; 137 Am. St. 718; (2) 25 Cyc. 884; (3 and 4) 25 Cyc. 919; (5) 25 Cyc. 954; (6) 25 Cye. 941.