49 Ind. App. 392 | Ind. Ct. App. | 1912
On February 19, 1906, the Metropolitan Life Insurance Company issued an industrial insurance policy on the life of Lee C. Wolford, his wife, Susan Wolford, appellee, being named as beneficiary. According to the terms of the policy, it was issued upon an application which omitted the warranty usually contained in applications, and the policy itself contained the entire agreement between the parties. Certain conditions set out in the policy were made part of the contract, and among them were the provisions that no obligation is assumed by the company unless on the date of the policy the insured is alive and in sound health, that, unless otherwise stated in a waiver signed by the secretary of the company, the policy is void if the insured before its date has been attended by a physician for any serious disease or complaint, or has had before said date any pulmonary disease, or chronic bronchitis. On November 9, 1906, Lee C. Wolford died of consumption. The proofs of loss furnished to the company by appellee disclosed on the face thereof that the insured had been treated by two physicians for consumption in 1905. The company refused to pay the claim for this reason, and tendered to appellee the premiums paid in, amounting to $3.90. She refused to accept the premiums, and when suit was brought, the amount thereof was paid into court for her benefit. Appellee first brought suit in a justice’s court, and there recovered judgment for $63, the amount payable by the terms of the policy in case of the death of insured within less than a year from the date of its issuance. Appellant appealed to
Among the errors assigned under the motion for new trial is that the verdict is not sustained by sufficient evidence.
Such being the ease, the evidence shows that two of the conditions of the contract of insurance had been violated, for it was in evidence, and it is a matter of common knowledge that pulmonary tuberculosis is a serious disease, one which is liable to shorten life, and permanently to affect the system. Appellee testified that her husband was in sound health at the time the policy was issued, and that Doctor Ladd had treated him for typhoid-malaria in October, 1905. As appellee is unskilled in medicine, her testimony would relate only to the apparent sound health of insured, and there is nothing in her testimony contradicting that of the two doctors, that they treated insured for pulmonary tuberculosis in the fall of 1905, for Doctor Ladd testified that he treated him for typhoid-malaria in October, later for pulmonary consumption, and that he told appellee that her husband had tuberculosis, though he did not tell him for fear of alarming him, and though she testified that, to her knowledge, Doctor Kaadt had not treated insured in
There is an absolute lack of evidence to support the verdict as to material issues in the cause, therefore the court erred in overruling appellant’s motion for new trial. Other alleged errors argued will probably not occur on retrial. The judgment is reversed, with instructions to grant a new trial.