Federal Life Insurance Company v. Kerr
| Decision Date | 16 March 1910 |
| Docket Number | 21,551 |
| Citation | 91 N.E. 230,173 Ind. 613 |
| Parties | Federal Life Insurance Company v. Kerr |
| Court | Indiana Supreme Court |
Original Opinion of October 15, 1909, Reported at: 173 Ind 613.
The learned counsel for appellant have presented a very able argument in support of its petition for a rehearing, based upon the contention that the complaint is bad for failing to embody, or make as an exhibit, the so-called contract of reinsurance, and that we were in error as to the construction given to that contract.
The question of pleading was given deliberate examination by all members of the court before the original opinion was written and on reexamination we see no reason to change the views expressed.
Exception is taken specially to that part of the opinion in which the reinsurance contract is likened unto an application for insurance, which counsel concede need not accompany a complaint, for the reason, as they state, "that the application contains the statements and answers of the applicant, and the policy is the contract which the insurance company issues to him on his application." The original policy provides, in so many words, that the application "is hereby made a part of this contract," and it is unvaryingly held that such application need not be set out or exhibited in the complaint. In this case, under the new contract, the original policy was not taken up, and the contract, both under the statute and by the contract itself is the taking over of the risk under the original policy without any attempt or pretense of taking up the old contract, or substituting another for it, and the language of the certificate attached to the original policy is so worded as not readily to convey to one unskilled in interpreting such instruments, if not to mislead such an one, any other idea than that of assumption of that risk. It was an unnecessary thing, if it was intended merely to give notice of the fact that the new agreement had been entered into, for appellee's decedent was bound to know, if she was given notice, that a contract might be entered into by two-thirds of the policy-holders, and if it was, she was charged with notice of it. While the certificate is dated March 12, the date of the assumption contract, it must be presumed that the statute was followed, and that ten days elapsed during which election to transfer to some other company might be made before the certificate was in fact executed. Supposing appellee's decedent to have been ignorant of the terms of the assumption contract--and it is not pretended that she knew them until the certificate was given to her--it was then too late for her to extricate herself. Neither will it be presumed, nor was she in fact bound to know, that the other members without her knowledge or her assent would attempt, by virtue of mere numbers, to destroy the value of her contract; so that instead of serving any legitimate purpose it simply operated as a trap to ensnare her, under the contention that the certificate gave her notice, when it is perfectly apparent that that certificate was not executed until the ten days had elapsed, and dating on the day of the assumption contract is now used as a basis for imputing knowledge to her of facts now claimed to bind appellee, which it is not pretended that she knew until it was too late for her to help herself. Hence it fails of the purpose now claimed for it, as conveying notice, and legally fails to be effective for any purpose other than as an agreement of assumption of the risk, for the plain reason that there was no option then left to her as to any course, so as to put her to an election, unless it be to bring an action at once for damages. The statute does not require that the notice of the stockholders' meeting shall disclose any of the terms of the proposed contract, which is in and of itself a strong argument in favor of the proposition that the statute contemplates the taking over of the obligations of the transferring company as they exist. These reflections enforce the correctness of our former views, that the transfer contract is not, either by the law or by the recitals in the certificate attached to the original policy, such part of either the assumption or the ...
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Fed. Life Ins. Co. v. Kerr
... ... part of the opinion in which the reinsurance contract is likened unto an application for insurance, which counsel concede need not accompany a complaint, for the reason, as they state, that the ements and answers of the appellant and the policy is the contract which the insurance company issues to him on his application. The original or model policy provides in so many words that the ... ...