40 Ind. App. 711 | Ind. Ct. App. | 1907
Lead Opinion
Action by appellee as beneficiary of a certificate of membership issued by appellant to Joseph W. Vincent, who was appellee’s son. Trial by a jury, verdict and judgment for $1,088.75.
The errors assigned are the sustaining of appellant’s demurrer to the seventh paragraph of appellee’s answer, and the overruling of her motion for a new trial. In the seventh paragraph of answer it is averred that the contract sued upon is based upon appellant’s by-laws, the written application made by Joseph W. Vincent, together with the benefit certificate issued to him; that said Vincent, in his application warranted as follows:
“That any untrue answer or statement or any concealment of facts, intentional or otherwise, in this application shall forfeit the rights of myself and that of my beneficiary to any and all benefits and profits growing out of my membership in said society;”
that among the statements of said application was the following :
“I hereby make application for membership in your camp of the society of Modern Woodmen of America, and for indemnity in case of my death while a member in good standing in said society in the sum of $1,000. For such purpose I hereby tender to said society the following true and complete answers and statements: * # * (2) I was born at Paris, Kentucky, in the county of Bourbon, on October 3, 1864. ’ ’
It is alleged that he further answered as follows:
“I have verified each and all answers and statements of this application, adopt them as my own, and*713 declare and warrant that they are full, complete and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers, and I agree that such answers and statements, together with the preceding declaration, shall form the basis of the contract between me and the Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate. That this application may be referred to in such benefit certificate as the basis thereof, I further agree that if any answer or statement in this application is not literally true, or if I shall fail to comply with and conform to all of the laws of said Modern Woodmen of America now in force or hereafter adopted, then my benefit certificate shall be void.”
It is further averred that appellant’s by-laws required that the benefit certificate contain said warranties, and in conclusion it is averred “that the answer and statement of said Joseph W. Vincent in said application, that he was born on October 3, 1864, was false and untrue, as said Joseph W. Vincent was born on October 3, 1863, wherefore defendant prays judgment.”
Appellant’s attorneys state their position as follows: “It was Vincent’s business to see that all of his answers were written truthfully and correctly. As before stated, he said that he verified each of them and declared them warranties. The answer made by him as to his age was the warranty made so by his own contract. Even if it is a fact that he did not intend any deception in said answer, this fact will not avoid the effect of such answer; that defendant’s risk was not increased by Vincent’s deceit, as under the table of assessments Vincent paid the same rate that he would have paid if he had given his true age, still this fact does not avoid the effect of a false answer or breach of warranty. The law regards representations made by the applicant in an application for insurance, as a warranty to the in
Judgment, affirmed.
Rehearing
On Petition for Rehearing.
The petition is overruled.
All concur.