70 Ind. App. 684 | Ind. Ct. App. | 1919
This is an action to recover on a
life insurance policy issued by the appellant on the life of Orlando H. Couch.
The first paragraph of the complaint alleged that on October 1,191.3, the appellant issued to Orlando H. Couch its policy of insurance for $5,000, payable at death; that said Orlando H. Couch complied with all the requirements of the policy, and afterwards died; and that the appellee made all necessary proofs of death, but that appellant refused to pay the policy, and demanding judgment.
The second paragraph of the complaint alleged that on September 28, 1911, the Monarch Life Indemnity Company of Evansville, Indiana, issued and delivered to Orlando H. Couch and .the appellee a joint policy of insurance in the amount of $5,000, payable to the survivor on death of either of said parties; that a receiver was thereafter appointed for the Monarch
The appellant filed an amended answer admitting all the material allegations of the complaint, and assumed the burden of proving a defense.
The answer set out the reinsurance contract mentioned in the complaint, and, after setting out the provisions thereof as alleged in the second paragraph of complaint, alleged that when the policy-holders in
It was also alleged that, after the execution of said reinsurance contract, Orlando H. Couch and appellee did not elect to carry their joint life policy, for the reason that the premiums theretofore paid by them would only pay for an insurance of $2,000.99; that they elected to apply to appellant for the cooperative dual life policy upon their lives for $5,000; and that they made application for such new insurance on forms prescribed by appellant, a copy of which application is set out; that with their said application said parties furnished and delivered to appellant certain written statements, which were intended by the parties as satisfactory evidence of the insurability of said parties at the time of making such application, said written statement of Orlando H. Couch being also set out in full; that the policy of insurance sued upon was issued by appellant by reason of the foregoing facts, and not otherwise, and that the insurance policy theretofore held by said parties in the Monarch company was surrendered and canceled; that said policy of insurance so issued by appellant company was issued in consideration of and in full reliance upon certain statements and warranties contained in the said applicátion made and signed by said Orlando H. Couch, September 29, 1913, and delivered by him to appellant prior to the execution by it of the policy sued upon; that as a part of said application Orlando
“1 hereby apply to the Western Life Indemnity Company for a dual life policy of $5,000 on my life, in substitution for policy No. 804 now held by me, which latter policy shall be void upon acceptance of this application by said company. * * * And as a basis of and consideration for said new policy, I hereby submit and warrant that I am now in sound health, that there is no cause in connection with my physical condition that would be a bar to my securing life insurance or in any way shorten my life; that I am not afflicted with any physical or mental defect or infirmity, that I have never suffered from * * * diseases of the liver or kidneys.”
It is then alleged that the'statements in said health certificate were false and untrue, in that the said Orlando H. Couch was not in sound health September 29, 1913, and at the time the policy sued upon was issued; that at said time his health and physical condition were such that they would be a bar to his securing life insurance, and were such as to shorten his life; that he was at said time afflicted with a physical defect or infirmity, was suffering from a disease of the liver and kidneys, and other named diseases, which continued to exist and afterwards caused his death; that on several occasions prior to September 29, 1913, and also prior to September 21, 1911, said Orlando H. Couch had had physical examinations made by reputable physicians, in which examinations his urine was tested, and it was discovered that there was present in the urine albumen; that said condition
It is then alleged that the application made to the appellant company for the policy sued upon contained the following provisions:
“I hereby make the following warranties-; * * * inasmuch as the policy hereby applied for in the Western Life Indemnity Company is issued in consideration of my present membership in, or contract with, the Monarch Life Indemnity Company, and as such latter, membership or policy is based upon my application therefor to said Monarch Life Indemnity Company, I here*692 by expressly warrant to said Western Life Indemnity Company that my said application to said Monarch Life Indemnity Company and the statements and warranties contained in said application, together with all agreements, medical examinations, revival applications and health certificates made by me to said Monarch Life Indemnity Company for the issuance, revival of or continuance in force of my said membership or policy therein, are and were true when made, and, if the same, or any part thereof, was untrue when made, then, and in that case, the policy hereby applied for in said Western Life Indemnity Company shall be void and of no effect. ’ ’
It is also alleged that: When Orlando H. Couch made application to the Monarch Life Company for said insurance policy, he made a statement in writing dated September 21, 1911, to his medical examiner, which became and was a part of his application to said Monarch Company for said policy of insurance, which medical statement and application contained the following question and answer: “Have you ever been refused insurance in any company or order"? A. No;” that said statement and warranty was false in that the said Couch had theretofore made application for insurance upon his life with the Hartford Life Insurance Company, which application for insurance was refused and rejected by said Hartford Life Insurance Company prior to September 21,1911; that said statement and’warranty was false when made, in that, prior to making said application, he had applied for life insurance in the Mutual Life Insurance Company of New York, which application was also rejected and refused prior to September 21,
The appellee filed a reply in five paragraphs, the first of which was a general denial. A demurrer was sustained to the second and third paragraphs. The fourth paragraph alleged the issuing of the policy by the Monarch company in September, 1911; the execution of the reinsurance contract between the receiver of the Monarch company and the appellant company; the application of Orlando H. Couch to the appellant for the policy sued upon; that the policy sued upon was issued in the place of,and as a continuance of, the policy issued by the Monarch company, in which it was agreed that said policy of insurance and appli
The fifth paragraph of reply alleged that, within a few days after the death of Orlando H. Couch, appellee prepared all the proofs of death as she believed to be necessary under the terms of the policy sued upon and forwarded same to appellant; that appellant, after the receipt of said proofs of loss and with full knowledge of all the facts set out in its second answer, requested and required appellee to make additional affidavits and proofs of death, which she did at great expense and trouble, and that, although appellant was fully advised and knew all the matters set
The appellant filed a demurrer for want of facts to the fourth paragraph of reply, which was overruled and exception saved. There was a trial by jury, which resulted in a verdict in favor of appellee for $5,773.24. Appellee filed a remittitur for $369.24, and judgment was rendered for $5,414.
Appellant filed a motion for a new trial for the reasons that the verdict is not sustained by sufficient evidence, is contrary to law, and also because of alleged errors in' the giving of certain instructions tendered by appellee, and in refusing to give certain instructions tendered by the appellant.
The first error assigned is that the court erred ir> overruling the demurrer to the fourth paragraph of appellee’s reply. This paragraph of reply contains two purported avoidances of the answer: (1) That
The rights of the insured and the appellant were fixed by the terms of the policy issued by the appellant. The incontestability clause in the policy issued by the Monarch company had no bearing upon the policy sued upon; it was not made a part thereof, and did not bind appellant.
When the insured made his application for membership in the Monarch company, he submitted therewith, and as a part thereof, a medical examination; wherein he was asked if he had ever been refused insurance in any company or order, to which he answered “No.” Appellant’s answer alleged that prior to said time he had made application for and had been refused insurance in two different companies, which facts were unknown to appellant when it issued the policy in suit.
It will be observed that the reply does not meet all the allegations of the answer. The language of the réply is that the defendant had knowledge and information of such former “application” for insurance made by Orlando H. Couch. If we should hold that it was the intention of the pleader to allege knowledge of both applications mentioned in the answer, the reply would still be subject to demurrer on account of the failure to allege that appellant had.knowledge that insurance had been refused. Supreme Tribe, etc. v. Lennert (1912), 178 Ind. 122, 98 N. E. 115. There are other allegations iii the answer to the effect that the insured was afflicted with certain diseases, including kidney diseases, at the time he made application for the policy in suit, and that he knew of his diseased condition, and that appellant, if it were possessed of such information, would not have issued the policy in question; that he fraudulently concealed such facts from appellant; that such diseases continued and caused his death. The reply also fails to respond to this part of the answer, and is subject to demurrer for that reason. The appellee makes no
The appellee, in support of this theory, insists that the answer is not sufficient, because it does not allege that all the premiums received by the Monarch company had been tendered to appellee, and that the appellant did not give notice of its intention to rescind the contract, or make tender of the premiums within a reasonable time. The insured died April 30, 1914. Appellant, in its answer, alleges that it did not learn of the untruthfulness of the statements made by insured until August 10, 1914, when it notified appellee of its intention to rescind, and mailed her a check for the amount of the premiums paid; that appellee returned said check, without objection to the form of the tender, and filed her complaint in this action August 19, 1914; that, on November 30, 1914, appellant tendered to appellee $201.62, that being an amount sufficient to cover the premiums paid to appellant, together with all interest thereon, and that the further sum of $21.72, an amount sufficient to cover and pay all the costs of this action, was tendered to appellee; that appellee refused to accept said tender, and that thereupon said money was paid into court for the use of appellee.
It is not necessary that the medical examination, should contain any stipulations of warranties, or that it should have been made a part of the policy issued by the; Monarch company. It was made by the insured to the Monarch company, and in his application to the appellant he referred to this medical examination and warranted the statements in it to be true, thus making the said statement a part of his application for the policy sued upon. Under the conditions of the policy issued by appellant, a breach of warranty could be founded upon false statements made by the insured in his application to the Monarch company.
The answer alleged that at the time the insured made his application to the appellant for insurance he was not in sound health; that he was afflicted with certain diseases, which continued to exist and after-wards caused his death; that he had been examined by physicians, and was informed of his condition; that, for the purpose of obtaining the issuance of the policy sued upon, he fraudulently concealed said information, although he knew appellant would not issue the policy if it knew of his condition, and that appellant had no knowledge of his condition.
The health certificate, which was a part of his application presented to the appellants, contained the following statement:
*702 “As a basis of and consideration for said new policy, I hereby submit and warrant that I am now in sound health, that there is no cause in connection with my physical condition that would be a bar to my securing life insurance or in any way shorten my life; that I have never suffered from” certain diseases, naming them.
Stipulations and conditions like these in an application are regarded in the nature of conditions precedent to the policy becoming effectual. The answer does not disclose the existence of a temporary ailment or indisposition not related to the permanent health of the insured, but rather to a serious and incurable condition of such a nature as to shorten his life, and antedating the application, and continuing without interruption thereafter until it terminated in his death.
■ The facts alleged show the existence of such a condition and such a breach thereof as rendered the policy void at the election of the insurer. Ebner, Admr., v. Ohio, etc., Ins. Co. (1918), 69 Ind. App. 32, 121 N. E. 315; Metropolitan Life Ins. Co. v. Solomito (1916), 184 Ind. 722, 112 N. E. 521.
The answer set out in full the express warranty of the insured that the statements and warranties contained in his application and medical examination to the Monarch company for insurance were true when made, and alleged that in said medical statement he falsely stated that he had never been refused insurance in any company or order; that he had prior thereto made application for insurance upon his life with the Hartford Life Insurance Company,.and also with the Mutual Life Insurance Company of New York; that both of said applications had been re
A false answer by an applicant for insurance that he had never been rejected by, or refused insurance in, any other company, in the absence of waiver or estoppel, renders the policy voidable at the election of the insurer. Supreme Lodge, etc. v. Miller (1915), 60 Ind. App. 269, 110 N. E. 556; Kelly v. Life Ins. Clearing Co. (1896), 113 Ala. 453, 21 South. 361; March v. Metropolitan Life Ins. Co. (1898), 186 Pa. 629, 40 Atl. 1100, 65 Am. St. 887; Finch v. Modern Woodman, etc. (1897), 113 Mich. 646, 71 N. W. 1104; Finn v. Metropolitan Life Ins. Co. (1903), 70 N. J. Law 255, 57 Atl. 438; American Life Ins. Co. v. Judge (1899), 191 Pa. 484, 43 Atl. 374; Security, etc., Ins. Co. v. Webb (1901), 106 Fed. 808, 45 C. C. A. 648, 55 L. R. A. 122; Webb v. Security, etc., Ins. Co. (1903), 126 Fed. 635, 61 C. C. A. 383; Home Life Ins. Co. v. Myers (1901), 112 Fed. 846, 50 C. C. A. 544; Nat. Life Assn. v. Hopkins (1899), 97 Va. 167, 33 S. E. 539; Moore v. Mutual, etc., Life Assn. (1903), 133
This is the rule even though the policy by its terms provides that such a statement shall be treated as a representation and not as a warranty. See Ebner, Admr. v. Ohio, etc., Ins. Co., supra, where this court •had before it a policy which expressly made all statements in the 'application representations and not war. ranties. The court, speaking through Caldwell, J., said: “Knowing that he had made the application, he was bound to know that it had either been rejected or that it was pending, and, if pending, his answer was likewise false. * * # His answer .that no physician had within the last ten years expressed an unfavorable opinion concerning his health was untrue, and likewise his answer that he did not have at the time of the application, and that he never had had, any disease of the heart. Under a provision embodied in the incontestability clause as above set out, the statements now under consideration should be dealt with as representations rather than warranties. Their nature is such that they should be regarded as material to the risk. * * * We then have a case of representations, false in fact and material to the risk. A material false representation is a ground for the avoidance of an insurance policy the same as any other contract. 14 R. C. L. 1021. Such a representation may be designated as a misrepresentation. A misrepresentation, as that term is used in its rela
If this be true in cases where the statements are to be treated as representations, there is certainly more reason for so holding in a case like the present where the contract makes them warranties. '
The appellant’s answer was sufficient, and it was therefore error to overrule the demurrer to the fourth paragraph of reply.
We have examined the instructions about • which complaint is made. There was no error in the giving of any of them.
The appellant also contends that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law.
The undisputed evidence shows that in 1911, and prior to the time when the insured applied to the Monarch company for insurance, he had applied .to the Hartford Life Insurance Company and also to the New- York Mutual Life Insurance Company, and that both of said companies had refused him insurance because of the condition of his health; that on September 21, 1911, he applied to the Monarch company for insurance and submitted to a medical examination, in which he stated that he had never been refused insurance by any company; that his said statement was false; that he knew it was false; that he signed and presented his application to the appellant company as alleged in the answer, wherein he warranted that all the statements made by^ him in his application and medical examination to the Monarch company were true; that the appellant, when it issued the policy sued upon, did not know that he had been refused insurance; that it relied on the truthful
On July 8,1914, appellant again wrote to appellee, saying that no reply had been received to the letter of June 26, requesting further information, and insisting that appellee give the information requested before appellant would make any definite disposition of the death claim, notwithstanding the threats made by her attorney to bring suit in case the claim was not paid before July 15. On July 16, appellant wrote a letter to J. L. Crouse, attorney for the appellee, acknowledging the receipt of his letter of the 11th instant, inclosing proofs of loss, and stating that additional affidavits which it deemed necessary were that day being mailed to appellee; that if, after a thorough review of all the available.proofs, the appellant felt compelled to deny payment of the claim, it would frankly give him the reasons for so doing, and that if, on the other hand, it found that the proofs supported the claim, no time would be lost in making payment. The appellant had employed the Hooper Holmes Bureau to investigate the facts, and on July 14, received a letter to the effect that the bureau had
Our conclusion is that the verdict is not supported by the evidence, and is contrary to law. The court therefore erred in overruling the motion for a new trial.
Judgment reversed, with instructions to sustain the motion for a new trial, to sustain the demurrer to