Commercial Travelers Mutual Accident Association v. Springsteen

• Decision Date: 11 January 1900
• Docket Number: 2,878
• Citation: 55 N.E. 973,23 Ind.App. 657
• Parties: THE COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION v. SPRINGSTEEN
• Court: Indiana Appellate Court

55 N.E. 973

23 Ind.App. 657

THE COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION v. SPRINGSTEEN

No. 2,878

Court of Appeals of Indiana

January 11, 1900

From the Marion Superior Court.

Affirmed.

C. E Barrett, for appellant.

J. W Noel and F. J. Lahr, for appellee.

OPINION

COMSTOCK, J.

This action was brought upon an insurance policy issued by the appellant, a mutual accident association organized under the laws of Indiana, to the appellee. The policy was issued November 1, 1895. Appellee received the injury for which he sues June 21, 1896, while the policy was still in force. The complaint was in four paragraphs. The first, third, and fourth paragraphs alleged that written notice of appellee's injury had been given to the association according to the terms of the policy. As it is not claimed that such written notice was ever given, these paragraphs are not discussed by appellant's counsel. In the second paragraph it is alleged "that the plaintiff immediately after said injury, to wit, on the --day of June, 1896, gave to the defendant at its home office in Indianapolis, Indiana due notice, stating the name and address of the plaintiff, full particulars of the injury, and the name of the attending physician and an eye witness, and that said notice was accepted by the defendant as sufficient notice and without objection."

Appellant's demurrer to each paragraph of complaint was overruled. It answered in four paragraphs, the first a general denial; the second, pleading the failure of appellee to give the notice required by his policy; the third, pleading want of notice and certain other conditions of the policy; the fourth, pleading a voluntary exposure to unnecessary danger, and setting out the provisions of the policy in reference thereto. The cause was put at issue by a reply in general denial.

A trial by jury resulted in a general verdict in favor of appellee for $ 250. With the general verdict, answers to interrogatories were returned. Judgment was rendered in favor of appellee for the amount of the verdict.

Appellant assigns as errors the action of the court in overruling its demurrer to each paragraph of the complaint; (2) in overruling its motion "for judgment on the special findings of the jury"; (3) in overruling its motion for a new trial.

In discussing the second paragraph of the complaint, appellant's counsel refers to one of the provisions of the policy in suit, in the following language: "Notice of the injury shall be given, within ten days from the happening thereof and the notice of death within thirty days, in writing, to the secretary of the association at its home office in the city of Indianapolis, Indiana, giving the name and address of the member, the date and full particulars of injury or death, with the name of the attending physician and an eye witness; any failure to give such notice shall render void all claims for such injury or death under this certificate." It is argued that this paragraph attempts to set up a parol notice, and "does not plead any facts from which the court can legally determine that the appellant was notified according to the contract." Further, that the appellee could not plead a performance of the conditions of the policy and recover under proof of a waiver of performance; no waiver being pleaded. Without determining whether the facts pleaded notified appellant according to the terms of the contract, we are of the opinion that the language of Mitchell, J., speaking for the court, in Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N.E. 285, is a sufficient answer to the objections named. The language referred to is found on page 276 of the volume and is as follows: "Stipulations which do not properly amount to conditions upon which the inception or obligation of the contract depends, and which merely require that something should be done by the assured in the way of furnishing proofs or information to the insurer regarding the circumstances and origin of the fire, the nature and extent of the loss, may be and are waived when other proofs or information in respect to the same matter are accepted or received without objection by an agent of the company who is duly authorized to act with reference to that subject. Franklin Ins. Co. v. Chicago Ice Co., 36 Md. 102, 11 Am. Rep. 469; May Insurance, § 511." This is not a question of the authority of an agent to waive the conditions of a policy. The paragraph alleges that he gave "due notice" stating full particulars of his injury to the defendant at its home office in Indianapolis, and that the notice was accepted by the defendant as sufficient notice, and without objection. See, also, Aetna Ins. Co. v. Shryer, 85 Ind. 362. The company had the right to accept any information upon the subject as sufficient. It is sufficient to plead facts constituting a waiver without in terms averring that the conditions were waived. The word "due" used in connection with the word notice, neither strengthens nor weakens the other averments of this paragraph. The allegation that the information was accepted as sufficient made the notice sufficient. The court did not err in overruling the demurrer to this paragraph.

Appellant next contends that the court erred in overruling its motion for judgment on the answers to interrogatories. In the fourth paragraph of the answer, it is averred that appellee voluntarily exposed himself to unnecessary danger, and that his injury was occasioned by reason of such voluntary exposure. The condition of the policy upon which this clause is based is as follows: "This certificate of insurance does not cover injuries nor death from any of the following causes: * * * voluntary exposure to unnecessary danger." The fourteenth interrogatory and answer thereto is as follows: "Was Robert E. Springsteen when injured voluntarily riding a bicycle against a heavy wind, and, at the time he received his injuries, not looking ahead to see where he was going? Answer. Yes." Interrogatory twenty-two is as follows: "Had Robert E. Springsteen been looking where he was going at the time he received his injuries would he not have discovered the wagon into which he ran in ample time to have turned out and avoided it? Ans. Yes." The jury in answer to other interrogatories found that the plaintiff was not conscious of existing danger when he received the injury; that he did not knowingly and intentionally assume a risk; that he did not intentionally take chances of colliding with the wagon, knowing of its presence; and that, in riding as stated in answer to interrogatory fourteen, he did not voluntarily expose himself to unnecessary danger, and in consequence thereof received the injury of which he complains; that the injury occurred when he was riding on a public highway on Sunday, June 21, 1896. The interrogatories and answers thereto do not constitute a special verdict. At the date of the trial, November 8, 1897, there was no statute in force in this State authorizing a special verdict. Interrogatories will not control a general verdict unless they are in irreconcilable conflict with it. Sponhaur v. Malloy, 21 Ind.App. 287, 52 N.E. 245.

In City of Ft. Wayne v. Patterson, 3 Ind.App. 34, 29 N.E. 167, the rule is thus stated: "If, taking all the special findings together, and adding to them any other fact that might have been proved under the issues, an irreconcilable conflict with the general verdict can be avoided, the answers to interrogatories will not be allowed to control." There is no irreconcilable conflict in the facts found and the general verdict, and the court did not err in overruling appellant's motion for judgment.

Under the third specification of the assignment of errors counsel for appellant first discusses the twelfth reason set out in the motion for a new trial, viz.: That "the court erred in admitting in evidence the testimony of the plaintiff as to a conversation had with one Benjamin H. Prather, wherein it was claimed that the plaintiff gave defendant notice by parol of his alleged injuries." Prather was the secretary of the defendant company. Appellant's proposition is that a written notice of the injury being provided for in the policy, proof of said notice was incompetent. The second paragraph of the complaint sufficiently averred a waiver of this provision; parol proof was therefore admissible.

Counsel for appellant insists, under proper assignments in the motion for a new trial, that the court erred in giving of its own motion certain instructions to the jury, and in refusing to give certain instructions requested by appellant. The seventh instruction given by the court undertakes to define total disability. The appellant in effect requested the court to instruct the jury that in order to recover, appellee's injury must have been such as wholly to disable him from performing any and every kind of business pertaining to his occupation as manager of the When Clothing Store. The court refused this instruction, and instructed that appellee could recover if he was disabled to the extent that he could not do any and all kinds of business pertaining to his occupation. Appellee's occupation, in the policy, was described as manager of the When Clothing Store. The condition of the policy in question is as follows: "No claims of any character shall accrue upon this contract unless it arises from physical bodily injury, through external, violent and accidental means, while this contract is in force, and then only when the injury shall, independently of all other causes, immediately and wholly disable the insured from performing any and every kind of business pertaining to his occupation as above stated." The expressions of the courts as to what constitutes total disability are not in harmony.

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