Western & Southern Life Ins. Co. v. Vale

Decision Date25 January 1938
Docket Number26998.
Citation12 N.E.2d 350,213 Ind. 601
CourtIndiana Supreme Court
PartiesWESTERN & SOUTHERN LIFE INS. CO. v. VALE.

Appeal from Gibson Circuit Court; A. Dale Eby Judge.

Morton C. Embree and Chas. O. Baltzell, both of Princeton, for appellant.

McDonald & McDonald, of Princeton, and Theodore Lockyear, of Evansville, for appellee.

FANSLER Judge.

Appellee brought this action, by complaint in two paragraphs, seeking to collect upon an alleged parol contract of industrial insurance. There was a trial by jury, and a verdict and judgment for appellee.

Error is assigned upon the overruling of demurrers and the overruling of appellant's motion for a new trial.

The material facts are not in dispute. On August 15, 1932 appellant's local agent and its district superintendent called upon appellee and solicited him to purchase a policy of industrial insurance. Appellee already had a small policy with appellant, upon which the premium was 35 cents per week. Appellee, pursuant to the solicitation, signed an application for an additional policy of $761, for which the premium was $1.29 per week, and paid two weeks' premium in advance. He signed the following application:

'Form 3 Ed. 11-30.

'Application to The Western and Southern Life Insurance Co.

'Home Office, Cincinnati, Ohio.

'Debit No. 112.6.

'District: Vincennes, Indiana.

'Agent: G. Steimel. For Home Office Use Only.

'Asst. Supt.: Everett Loving.

'1. Print full name of life proposed for insurance: Lon Vale.

'2. White

'3. Male

'4. Married or

'5. Residence: No. _____ Street, Ceder St.; City, Bicknell.

'6. Occupation: Miner. Is life proposed NOW employed: Yes. Name and address of employer: Knox Consolidated Coal. Co.

'7. Born: Date, Sept. 19, 1878. Where: Ind.

'8. Age next birthday: 55 years.

'9. Amount of insurance: $761.00(754).

'10. Plan: L.

'11. Premium: 1.29 cents (130).

'12. If life proposed is now insured in this company, give particulars of policies:

'Industrial Policy, Western Southern Nos. 8689090. Year of issue: 7-21-30. Amount of insurance: 231. Premium: 35.

'13. Ordinary Policy Nos.: None. Year of issue: None. Amount of insurance: None.

'14. If insured in other companies, give names and amounts: None.

'15. Has life proposed been rejected by this or any other company? No.

'16. Has life proposed any physical or mental defect or infirmity? No.

'17. When last sick? None. What illness? Serious.

'18. Names of doctors: None.

'19. Has life proposed now or ever had: Heart disease? No. Lung Disease? No. Cancer or tumor? No. A sever- injury? No. Kidney disease? No. Stomach disease? No. Convulsions? No. A surgical operation? No. Liver disease? No. Bowel disease? No. Goiter? No. A Serious illness? No. Bladder disease? No. Rheumatism? No. Diabetes? No. Medical or other treatment in a hospital or institution? No.

'20. Is life proposed blind or partly blind in one eye? No. Deaf or partly deaf? No. Lame or deformed in any way? No. Is life proposed now in sound health? Yes. Blind or partly blind in both eyes? No. Dumb? No. Has life proposed lost an arm, leg, hand or foot? No.

'I hereby declare that the information herein is true and I waive the privileged character of all information concerning my state of health at any time, and further declare that I AM NOW IN SOUND HEALTH.

'x Lon Vale Relationship of person who signs to life proposed: Self.

'Signature of life proposed if over 15 years old, otherwise by parent or guardian.'

The agent made the following certificate, which was attached to the application:

'Agent's Certificate.

'Did you see applicant sign this application: Yes.
'Do you believe the life proposed a desirable insurance risk? Yes.
'With Whom does life proposed live? Family.
'Relationship: Family.
'Who will pay the premiums? Lon Vales.
'Relation to life proposed: Self.
'Is any other person paying premiums on life proposed? No.
'Name and relationship: None.
'Is life proposed related, by blood or marriage, to you or any employe of the company? No.
'Amount collected on this application: 2.58 cents.
'Dated: 8-15-1932.
'[Signed] G. Steimel, Agent.'

The following receipt was executed by the agent and delivered to appellee:

'Deposit of $2.58 by Lon Vales with application this day made to the Western and Southern Life Insurance Company for a policy of industrial life insurance on the life of Lon Vales is hereby acknowledged. Said amount is to be applied on account of premiums in the event such policy is issued, otherwise to be returned.
'Provided the insured be in sound health and over six months of age on the date of said application, the company's liability under such policy, if and as issued, shall commence as of the date of said application.
'Dated: 8-15-32.
'G. Steimel, Agent.
'Return this receipt if you get a policy, and see that the payment is entered in your book.
'(See notice on other side.)'

Reverse side:

'If the holder of this receipt does not receive a policy of insurance or the return of the money herein receipted for within three weeks write, stating name of agent and particulars, to
'The Western and Southern Life Insurance Co.
'Fourth St. and Broadway, 'Cincinnati, Ohio.'

Appellee was taken to a doctor for medical examination. The examiner's report is as follows:

'Medical examination ordered.

'F. J. Woehnker, Superintendent or Detached Asst. Supt.

'Date: 8/16/32.

'Medical Examiner's Report.

'Note: Medical Examiner will not be allowed fee for examination unless this application bears the personal signature of the Superintendent or detached Asst. Supt.
'To be answered by life proposed for insurance.
'1. Print full name of person examined: Lon Vale.
'2. Your age next birthday: 55 years.
'3. Have you any physical or mental defect or infirmity? No.
'4. When last sick? None. What illness? _____ Names of doctors: _____
'5. Has life proposed now or ever had: Heart disease? No. Lung disease? No. Cancer or tumor? No. A severe injury? No. Kidney disease? No. Stomach disease? No. Convulsions? No. A surgical operation? No. Bowel disease? No. Goitre? No. A serious illness? No. Rheumatism? No. Diabetes? No. Medical or other treatment in a hospital or institution? No. Liver disease? No. Bladder disease? No.
'6. Is life proposed blind or partly blind in one eye? No. Blind or partly blind in both eyes? No. Deaf or partly deaf? No. Dumb? No. Lame or deformed in any way? No. Has life proposed lost an arm, leg, hand or foot? No. Is life proposed now in sound health? Yes.
'I hereby declare that the information therein is true and I waive the privileged character of all information concerning my state of health at any time, and further declare that I AM NOW IN SOUND HEALTH.
'Lon Vale Relationship of person who signs to life proposed: Same.
'Signature of life proposed if over 15 years old, otherwise by parent or guardian.
'To be answered by Examiner.
'A. Are you satisfied as to the identity of life proposed? Yes.
'B. Does he appear older than age given? No.
'C. Does his appearance indicate good health and habits? Yes.
'D. Is heart normal? Yes.
'E. Are lungs normal?
'F. Where was this examination made? Your office of applicant's residence? Office. If elsewhere, give address.
'G. White
'H. Male
'I. Height? 5 ft. 8 in. Weight? 195 lbs.
'J. Are there any circumstances connected with the habits, health or surroundings that the company should know? No.
'I have this 16 day of Aug. 1932, PERSONALLY seen and EXAMINED the life proposed for insurance. I am of the opinion that said life is in SOUND health and is safely insurable.
'G. H. Wilson, M. D. Physician's signature.
'Remarks: Inspected Aug. 16, 1932.
'E. Loving, Supt. O. K. Rejection
Filed Checked Va.'

It was understood between the parties at the time that the insurance applied for was the same as appellee already had, known as a 'whole life industrial policy.' The application, receipt, agent's certificate, and medical examiner's report were all upon forms prepared and furnished by the company to the agent or superintendent. Appellee could not read. At the time the receipt was executed and delivered to appellee, the company's representative told him that if he got a limb cut off or an eye put out he would be paid one-half the amount in money and be given a paid-up policy for life; that the receipt was just as good as the policy; and that the insurance was in effect from the date of the receipt. On the next day the district superintendent took appellee to a doctor for examination. The papers referred to were sent forward to the company. On August 18th appellee's left hand was cut off just above the wrist in the mine where he was working.

Appellant called as a witness the manager of its industrial insurance department at its home office in Cincinnati, who passed upon applications for the issuance of industrial policies. He testified that, when applications come in, he examines them and if the case appears to be irregular he has them investigated; that: 'When an application comes in, if it appears to be regular we issue the policy. If there was any irregularity, in some cases we risk the irregularity and in others we delay issuing a policy and make an investigation. In this particular case the occupation of the applicant was that of a coal miner, and in applications where the premiums were in excess of what we consider reasonable for the applicant to pay we questioned the ability of the applicant to pay it. In such an instance we would write to the superintendent and ask him to personally investigate and see if the applicant was in position to meet the weekly premium payments.' He testified that he had seen the application; that: 'It came into the home office on August 22, 1932. It came into my hands on the same day; upon receipt of it I wrote...

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