8 Ind. App. 85 | Ind. Ct. App. | 1893
The appellee brought suit against appellant to recover the amount of a policy ($2,000) alleged to have been executed by appellant upon the life of her husband, William Pauly, who died March 1, 1890. The policy is dated October 1, 1889. The principal allegations of the complaint, in detail, are that appellants solicited said William Pauly to take out insurance, and he thereupon applied for a $2,000 policy upon the endowment life-rate plan, payable to appellee; that appellant refused to accept this application and notified its agent of
To this complaint there was an answer of general denial, and also of breach of warranty as to certain statements in the application.
The insufficiency of the third paragraph of the complaint is assigned for error in this court. Our statute does not authorize the separate paragraphs of a complaint to be thus questioned for the first time in the Appellate Court. It is only the entire complaint which can be thus tested. Tachau v. Fiedeldey, 81 Ind. 54; Ashton v. Shepherd, 120 Ind. 69.
No question is therefore presented for our determination under this assignment.
After trial by a jury, and verdict for appellee, judgment was rendered in her favor over the appellant’s motion for a new trial.
Under this motion, the sufficiency of the evidence and the correctness of the court’s action as to certain instruc ■ tions and interrogatories are brought before us.
In the application, this question was contained: “Have you required the services of a physician during the last seven years? If so, state what for and when; also give his name and address.”
To this, the answer was “No.”
It is urged, by appellant, that this statement constituted a warranty, for a breach of which the policy was avoided.
With this view of the law we are unable to agree.
By reason of their stringent character, warranties in insurance policies are not favored in law. The court will construe as a warranty that only which the parties have plainly and unequivocably declared to be such. Sup. Lodge, A. O. U. W., v. Hutchinson, 6 Ind. App. 399, 33 N. E. Rep. 817; North Western, etc., Life Ins. Co. v. Hazlett, 105 Ind. 212; Rogers v. Phenix Ins. Co., 121 Ind. 570; Penn., etc., Life Ins. Co v. Wiler, 100 Ind. 92.
We are by no means ready to decide that, even by the terms of the application, this statement is made a warranty; but even if it were, it could not be so construed in the light of the provisions of the policy. By the express terms of the policy, it is issued on condition that “in case any statements or declarations made in the application for this policy are in any material respect untrue,” * * * “the company may, at its option, cancel this policy.” Having, by this express language, provided the remedy for any false statements, and prescribed the character of false statements to which the penalty shall attach, it can not be held, by reason of the
We next come to the question as to whether or not the verdict is sustained by the evidence, when applied to an issue formed by the general denial. As to the evidence itself, there is substantially no conflict, the differences between counsel being with reference to the inferences ■of fact which are fairly and reasonably deducible from the evidence, and the result of the application of the law thereto.
Dr. Paul H. Ourtner testified that he made the medical ■examination of deceased, September 28, 1889; that he had a conversation with Daily, the agent, two or three weeks afterwards, at the post-office, in which he told Daily that Pauly was very sick, and Daily said: “I have just.received Pauly’s policy, and I will take it out to him this evening or in the morning.”
D. 0. Daily: I was agent of Union Central Life Insurance Co. in September and October, 1889. I received this policy on the 10th day of October, 1889. I sent this application of William Pauly to the Union Central Life Insurance Co. I sent the policy back to the company about the 10th of March, 1890. I sent a postal-card to William Pauly on the subject of life insurance.
The policy was offered in evidence, and contains this
The policy is dated October 1, 1889, for $2,000, upon the ten-year endowment plan. ■
The application is for $2,000 on the endowment life plan.
Nancy Pauly: "Daily was at our house talking life insurance in wheat-sowing time. Last time Daily was there was before the Vincennes fair. He asked William which he wanted, the ten or twenty-year plan. William answered-: "Fix it whichever way you think is best.” I did not hear all the conversation. I saw a postal-card from Daily, which is now lost. There was but one card.
Newton Pauly: Saw Daily at our house several times, once in a field with another man in wheat sowing time. Saw card. It read: "Mr. Pauly — Your policy has come. The first time you are in town come around and get your policy, and oblige, D. O. Daily.” Don’t remember that Daily was there any more. Remember selling the hogs. Card.came about one week before Brother Willis and others took the hogs off. Don’t remember date, but it was after wheat sowing. Am son of Wm. Pauly. Sold hogs three or four weeks after we sowed wheat. We sowed wdieat last of September. Father was sick in bed wrhen the card came. Last time I knew of father’s being. in Hazelton was on Thursday of Vincennes fair, first part of October. Father got his mail at Hazelton about once or twice a week. Got the card through Hazel-ton postoffice.
Willis Pauly: Knew of postal card coming. Went to see Daily afterwards at father’s request. We took the
Letter of secretary of the company says: "The company acknowledges no liability under policy No. 63,913 that had been issued by it on the life of Wm. Pauly in October last,” but sends blanks as a matter of courtesy.
E. P. Marshall: Secretary of appellant. From its organization to the present time our company has pursued but one method of writing insurance, and that is upon a written application of the insured.
Wm. Pauly’s application for $2,000 life rate endowment was received by us from Chicago department and referred to medical department. Medical directors decided that a policy should not issue on the plan proposed, but that a ten year endowment policy might issue, and a policy upon this plan was then prepared and sent through the Chicago agency to Daily in the expectation that he could induce him to accept it instead of a policy such as he had applied for. It was sent without any special instructions to Daily as to its return if declined, but subject to the uniform rule of the company, which appears in the printed manual held by all agents, including Daily. This rule is that policies not delivered to the insured and paid for shall be returned to the home office
Our register has a memorandum of the policy (setting it out) showing date, amount, etc., made when policy was sent out to Chicago agency, and a notation of the amount of first premium charged to it.
This comprised the appellee’s evidence.
For the defendant.
D. 0. Daily: My only instructions were in a manual, viz.: “When you receive a policy from the home office for collection, you must not deliver if you know of any unfavorable change in the habits or health of the person on whose life it is issued. You must not, in any case, deliver a policy or renewal receipt until the premium is paid.” And, again, the manual contained this instruction: “Should the health of the applicant become im
When Pauly agreed to take the $1,000 I agreed to give him six months on the half, he to pay half cash. I probably said to Dr. Gudgel in the month of March or April that I had to give Pauly time on one-half the premium. This was October 6th, and last time I saw Pauly. It was after I had received word that the company would not accept his application on first plan. There was nothing said about waiting until he sold his-hogs.
Dr. Gudgel testified that in March, shortly after Pauly’sdeath, Daily told him that in order to get Pauly to take insurance he had to give him time on one-half the-premium.
There is here neither payment to the company nor actual delivery of the policy. Is the evidence such as to-
It is undoubtedly true that while, as a general rule, the delivery of the policy and payment of the premium, either in money or by note, both accrue when the contract is consummated, still it is also true that there may be a valid and enforceable contract of insurance without payment or without a manual delivery of the policy. Hamilton v. Lycoming, etc., Ins. Co. 5 Barr (Pa. St.), 339; Cronkhite v. Accident Ins. Co., 35 Fed. Rep. 26; Carpenter v. Mutual, etc., Ins. Co., 4 Sandf. Ch. 408; Tayloe v. Merchants, etc., Ins. Co., 9 How. (U. S.) 390; Fried v. Royal Ins. Co., 50 N. Y. 253; Kentucky, etc., Ins. Co. v. Jenks, 5 Ind. 96.
Such contract may also exist without either payment of premium or delivery of policy. Bragdon v. Appleton, etc., Ins. Co., 42 Me. 259; Collins v. Ins. Co., 7 Phil. 201; Kohne v. Ins. Co., 1 Wash. (C. C.) 93; Sheldon v. Conn., etc., Ins. Co., 25 Conn. 207; Hallock v. Commercial Ins. Co. 2 Dutch. 268; Commercial Ins. Co. v. Hallock, 3 Dutch. 645; Xenos v. Wickham, 2 L. R. (H. of L. Cases), 296; New England Fire, etc., Ins. Co. v. Robinson, 25 Ind. 537.
Yet such casos are recognized as exceptional, and in order to sustain them the proof, whether direct or circumstantial, should be of such a character as to reasonably support the assertion.
Bliss on Life Insurance, p. 229, section 154, enunciates this rule: “In life insurance, the policy always provides that it is not to take effect until the first premium is paid. In such cases, if there is no actual delivery of the policy under such circumstances that a waiver of payment of the premium may be inferred, there must be some satisfactory proof that the premium was so paid, or that its payment was in fact waived. While
In Cronkhite v. Accident Ins. Co. (Fed.), 17 Ins. Law Jour. 509, Brewer, J., says: “A party should not be called on to pay where it has in fact received nothing, unless there is some clear and positive reason upon which the demand rests.”
Keeping in mind the well established rule of our court that where there is a conflict of evidence we will not undertake to weigh it, we are still unable to find in the evidence of this case any from which it may be reasonably and legitimately inferred that there was here a binding and completed contract of insurance. All of the evidence is consistent with the idea that there were simply negotiations looking toward an insurance.
There is no indication of any purpose to contract other than by a policy to be made and delivered upon payment of at least half of the premium. Heiman v. Phœnix Mut. Life Ins. Co., 17 Minn. 153; Markey v. Mut. Ben. Life Ins. Co., 103 Mass. 78.
There is here an entire want of proof that the agent in any manner waived payment or gave any credit, except as to one-half the premium.
Counsel for the appellee rely largely upon the postal-card, for proof that there was a constructive delivery of the policy and a consummation of the contract. It is urged that by the language, “your policy,” u'sed in this ( card, the idea is conveyed that the policy then actually belonged to Pauly, and that the agent simply held it as a trustee for him. When all the surrounding circumstances, as to which there is no dispute, are regarded,
Counsel for the appellee support their proposition that the “contract was executed, and that there was nothing further to be done,” when the postal card was written, by the cases of Cooper v. Pacific Mut. LifeIns. Co., 7 Nev. 116, and Tayloe v. Merchants’ Fire Ins. Co., 9 How. (U. S.) 390.
In the former of, these cases, $50 was paid when the application was made, which was, according to the company’s regulations, to be applied on the first year’s premium, provided the company should conclude to make the insurance. The company did so conclude, entered its conclusion on its books and forwarded policy to agent, and the money paid thereby became the money of the company, and the beneficiary became entitled to a policy upon complying with the other terms of the contract, which she offered to do in strict accordance therewith, although her husband had taken sick and died after the acceptance of the application and before the delivery of the policy to her.
In the Tayloe case, Tayloe applied for insurance, the company wrote the agent it would take it at a certain rate. The agent so notified Tayloe, telling him that if he desired to effect insurance to send him a check and the “matter is concluded.” On the day after receiving this letter;Tayloe sent a check by mail, with directions to leave the policy at a bank. The insurance was held to take effect from the mailing of the check, the matter being then “concluded” so far as effecting a completed contract was concerned.
These cases present very different features from the
In the cases of Kentucky, etc., Ins. Co. v. Jenks, supra, and New England Fire, etc., Ins. Co. v. Robinson, supra, there were clear and distinct contracts for insurance, the terms of which were fully complied with by the insured.
If the minds of the parties ever met, and an agreement for an insurance was made, it must have been upon the 6th of October, which was the last time that Daily saw Pauly. Whatever the arrangement then made was, whether for $1,000 or $2,000, there is not a scintilla of evidence that there was any waiver of payment of more than half the premium. Pauly then understood he was to pay half cash, at least. Word was left with his son, on the 14th, that the policy had come, yet he made no move toward payment or consummation of the contract until December 6th.
The agent certainly acted with diligence. He wrote him a card about the 10th, and went out in person on the 14th, but no response came from Pauly. We are unable to see that it was incumbent upon the agent to specifically urge payment upon Pauly as a condition to his policy’s becoming effectual, nor can we hold, as urged by counsel, that his failure to do so is to be deemed a waiver of payment. Presumptively, the payment of. the premium and the delivery and effectiveness of the policy would go hand in hand. May on Insurance, section 56; Heiman v. Phœnix Mut. Life Ins. Co., supra.
Pauly had no right to expect anything else, unless by special agreement.
There was, as we construe it, nothing in Daily’s postal card which could have tended to raise in Pauly’s
Under the circumstances of this case, taking into consideration the time which elapsed between the negotiations and the tender, and the fact that Pauly was sick about the 10th of October; was sick about the 21st of November; was sick and unable to go to sell his hogs on November 28th, and was sick and unable to go to town on the 6th of December, we are of opinion that the agent was justified in declining, and in good faith to his company he was required to decline, to consummate the contract on the 6th of December, when the tender was made.
The judgment is reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.