54 Ind. App. 326 | Ind. | 1913
This is an appeal from a judgment for appellee, in an action brought by Mm to recover on a life insurance policy by tbe terms of whie\ appellant insured “the joint life” of appellee and Ms wife, Nellie Sellers for $500, “payable to tbe survivor of Darnel S. Sellers and Nellie Sellers beneficiary.”
Tbe complaint is in tbe usual form, and contains a copy of tbe policy together with a copy of tbe application endorsed thereon as an exhibit. Tbe provisions and conditions of such policy and tbe application therefor, important and necessary to an understanding of tbe question presented by tbe appeal are:
*328 Provisions of Policy:
“In Consideration of the application for this policy, which is hereby made part of this contract, a copy of which application is endorsed hereon, and of the payment, in the manner specified, of the premium herein stated, hereby insures the joint life of the persons herein designated as the insured for the amount named herein, payable as specified, subject to the privileges and provisions on the second and third pages hereof, which are hereby made part of this contract. * * * Entire Contract Contained in This Policy.— This policy (together with the copy of the application endorsed hereon) contains the entire contract between the parties hereto, and all statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and no such statement shall avoid the policy or be used as a defense to a claim thereunder unless it be contained in the application for the policy and unless a copy of such application be endorsed upon or attached to the policy when issued. ’ ’
Provision of Application.
“I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, as well as the statements and answers made or to be made to the company’s medical examiner, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same conditjpn as described in this application.”
Declaration of applicant at close of medical examination.
“ * * * I hereby declare that all the statements and answers to above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for. Dated this 22 day of February, 1910. Nellie Sellers. Applicant’s signature.”
Among the questions propounded by the medical examiner and answers made thereto by decedent is the following: “* * * Have you been attended by a physician during
Finally it is urged that the verdict is not sustained by sufficient evidence and is contrary to law. It is contended that the evidence, especially that addressed to the issue presented by the third paragraph of answer, is without conflict and that the question of its preponderance or weight is not involved. As before indicated, the theory of this paragraph is that the policy of insurance was fraudulently procured by the decedent in that she, in her application, answered falsely the question before set out herein, pro
Finding no available error in the record, the judgment below is affirmed.
Note.—Reported in 102 N. E. 894. See, also, under (1) 38 Cyc. 1782; (2) 9 Cyc. 591; (3) 38 Cyc. 1809; (4) 25 Cyc. 812; (5) 25 Cyc. 802; (6) 25 Cyc. 949; (7) 25 Cyc. 813, 816. As to what is good health within meaning of life insurance, see 10 Am. St. 242. As to existence of disease at time of application for life insurance, see 3 Am. St. 634. As to question of the effect of honest mistake in answer as to health of insured, warranted by him to be true, see 15 L. R. A. (N. S.) 1277. As to what constitutes a consultation with or attendance by a physician, within the meaning of an application for life insurance, see 18 L. R. A. (N. S.) 362; 17 Ann. Cas. 1203; Ann. Cas. 1913 B 752. And for the time covered by question or representation as to consultation with physician, see 45 L. R. A. (N. S.) 162.