41 Ind. App. 345 | Ind. Ct. App. | 1908
Appellee, as sole beneficiary under an accident insurance policy executed by appellant to her husband, William E. Clark, brought this action against appellant to recover on that policy. Appellant sought to abate this action by an answer in two paragraphs. The first, on the ground that the court did not have jurisdiction of appellant, the second, upon the theory that the court did. not have jurisdiction over the subject-matter of the action. On motion the first of these paragraphs was stricken out. A demurrer to the second was overruled, and a reply in general denial filed. The issue thus formed was tried by the court and determined in favor of appellee. Appellant answered the complaint in seven paragraphs.; the first being in deniál. A demurrer was sustained to the fifth and sixth paragraphs and overruled to the second, third, fourth and seventh. Appellee replied by a verified general denial, and by a second paragraph directed to the fourth paragraph of appellant’s answer. The issues thus joined on the merits of the contro
The errors relied on are: (1) The court has no jurisdiction of the subject-matter of the action; (2) the court erred in sustaining the demurrer to the fifth and sixth paragraphs of answer; (3) the court erred in overruling appellant’s motion for judgment on the answers to interrogatories notwithstanding the general verdict; (4) the court erred in overruling appellant’s motion for a new trial.
The fifth and sixth paragraphs of answer count upon a breach of warranty as a defense to the action on the policy.’ The breach averred relates to certain statements of fact regarding the insured’s age, vision, medical and surgical treatment. The answer further alleges that appellant was ignorant of the facts so stated in the- insured’s application for insurance; that such facts were all peculiarly within the knowledge of the insured; that appellant relied upon such statements and was induced thereby to issue said policy; that said policy was issued in consideration of the premiums and of the statements and agreements in the schedule indorsed thereon and made a part thereof, which statements were warranted to be true; that the insured agreed that if any statements in the application were untrue the policy should be null and void; that said statements relative to age, vision, medical and surgical treatment, and so warranted to be true, were false, and known by said insured to be false at the time they were made, and averring wherein such answers were untrue. In addition to the facts common to both paragraphs, it is averred in the sixth paragraph that the insured misrepresented certain facts concerning himself, which were material to the risk; that as soon as appellant discovered that said answers and statements of fact had been misrepresented, and before the bringing of this action, it mailed to appellee a bill of exchange, payable at any bank, for the sum of $5, the same being the premiums paid by the insured on account'of said policy; that appellee refused to accept said bill of exchange, and returned the same to appellant. The application, which was made a part of each of these answers, contains many other statements and answers concerning the insured, and about which there is no complaint.
Appellant insists that its motion for judgment on the answers to interrogatories should have been sustained for the reason (1) that the court had not jurisdiction of the subject-matter of the action; (2) that such answers show a breach of warranty; (3) that final proofs of death were not fur
“I hereby apply for a policy of insurance in the United States Health and Accident Insurance Company of Saginaw, Michigan, to be based upon the following statement of facts, all of which I warrant to be complete and true, and I agree, if any of said statements shall be untrue in any respect, then said policy and insurance shall be null and void. * * * I further agree to accept the policy subject to all of its provisions, conditions and limitations, and to pay the monthly premiums of $2 in advance without' notice. ’ ’
The following statements are in the application; “I have
“In consideration of the premium, and of the statements and agreements of the schedule indorsed hereon and made a part hereof, which statements the assured makes on the acceptance of the policy and warrants to be true, does hereby insure the person described in said schedule. * * * The terms and conditions of this policy cannot be waived or altered by any agent, nor shall notice to any agent or knowledge of his or any other person be held to effect a waiver or change in this contract-or in any part of it. No change whatever in this policy and no waiver of its provisions shall be valid unless an indorsement is added thereto, signed by the president or secretary of the company, expressing such change or waiver. * * * Failure to give written notice to the company at Saginaw, Michigan, within ten days from date of injury or beginning of illness, by reason of which claim is to be made, shall invalidate all claims hereunder. Notice given to any agent shall not constitute notice to the company, unless affirmative proof of loss * * * is furnished to the company at Saginaw, Michigan, within thirty days from date of death. * * * All claims based thereon shall be forfeited to the company. ’ ’
The answers further show that the insured lost his eye in the year 1890; that he received medical treatment for knife wounds in 1902; that at the time the policy was issued the insured lived in St. Louis, Missouri, and was working on the agricultural building at the World’s Fair grounds, and was so living and working when on August 15, 1903, he was killed by a fall from a scaffold; that appellant mailed to ap