Gray v. Nat'l Ben. Ass'n

• Decision Date: 22 April 1887
• Citation: 111 Ind. 531,11 N.E. 477
• Parties: Gray v. National Ben. Ass'n.
• Court: Indiana Supreme Court

111 Ind. 531

11 N.E. 477

Gray

v.National Ben. Ass'n.¹

Supreme Court of Indiana.

April 22, 1887.

Appeal from superior court, Marion county.Hill & Lamb, for appellant. Shepard & Martindale, for appellee.

HOWK, J.

This is an appeal by Bridget Gray, the plaintiff below, from a judgment of the Marion superior court in general term against her for appellee's costs. By a proper assignment of error here, she has brought before this court the same error she assigned below in general term, namely: That the Marion superior court at special term erred in sustaining appellee's demurrer to appellant's amended reply herein.

The case is before us on the pleadings. In her complaint appellant alleged that appellee, the National Benefit Association of Indianapolis, was a corporation organized under the laws of this state, and was engaged in the business of insuring the lives of persons against death, caused by bodily injuries effected through external, violent, and accidental means, when death shall result therefrom within six months from the happening of such accident, and during the time such person shall be a member of such association; that in pursuance of and in accordance with the business of such appellee, on or about the twenty-seventh day of March, 1882, the appellee issued to one William E. Gray a certain policy or certificate of insurance in such association, and took William E. Gray into the association as a member thereof, a copy of which certificate of membership or policy was filed with and made part of such complaint; that while William E. Gray was a member of such association, to-wit, on the first day of December, 1882, he (William E. Gray) was employed as a locomotive fireman on a locomotive engine on the Kentucky Central Railroad; that, while so employed, the locomotive whereon he (William E. Gray) was so employed, collided with another locomotive and train of cars on such railroad, and in such collision, and by reason thereof, he was thrown violently against the boiler of the locomotive engine whereon he was fireman, and pressed against the same by the tank thereof, and was thereby instantly killed by external, violent, and accidental means; that on or about the ------ day of ------, 1883, and within six months after the accident which caused the death of William E. Gray, appellant furnished the appellee with notice and proper and sufficient proofs of the death of William E. Gray, in accordance with the requirements of such certificate or policy, and in all respects had done and performed all the conditions and stipulations of such contract on her part, but that the appellee had and still refused to pay such sum of $1,000 in such certificate or policy mentioned, or any part thereof. Wherefore, etc.

To appellant's complaint the appellee answered in two paragraphs, whereof the first was a general denial. In the second paragraph of its answer the appellee said that its rules and by-laws forbade the issuance of a certificate of membership to any person under the age of 18 years, or over the age of 65 years; and appellant's decedent, well knowing this rule of such association, falsely and fraudulently misrepresented his age to appellee in his application for membership, and warranted to appellee that he was 18 years of age, whereas he well knew, at the time, that he was under the age of 18 years; that the appellee never knew that such decedent was under 18 years of age until the appellant presented to it the proofs of his death, wherein she made oath that he was under the age of 18 years. Wherefore the appellee said that such certificate of membership was void, and the appellant ought not to have and maintain her action thereon.

For her amended reply to the second paragraph of appellee's answer the appellant said that the contract sued on was made and executed between appelleeand appellant's son, William E. Gray, at the city of Covington, in the state of Kentucky; that one George Jobe was the appellee's agent, and acted on its behalf in making such contract, and prepared the application of William E. Gray for such certificate of membership; that William E. Gray fully explained to such agent, before the contract was made, and before his application for such certificate of membership was prepared, that, at the time the application was made and such certificate issued, he was under the age of 18 years, and correctly informed such agent what his true age was, which appellant said was, to-wit, 17 years and 10 months; that such agent then informed William E. Gray that the fact that he was under the age of 18 years by so short a time as two months would make no difference, and that, under the circumstances, when so explained to such agent, it would be proper for him to sign the application which the agent prepared, showing his age to be 18 years; that thereupon William E. Gray signed such application accordingly, and paid such agent, for the appellee, the sum of $11.20 as admission fee, and for two advance assessments, which the appellee still retained; that appellee was not at all deceived thereby, but, through its agent, had full knowledge of the true state of facts in regard to the age of William E. Gray before the issuing of the certificate of membership sued on herein. Wherefore, etc.

We are of opinion that the court below at special term erred in sustaining appellee's demurrer to appellant's amended reply to the second paragraph of appellee's answer herein, and that, because of this error, the general term also erred in affirming the judgment below at special term. It will be observed that, in the second paragraph of its answer herein, appellee has not alleged that there was any provision in the law of its incorporation or charter which forbade its issuance of such a certificate of membership therein as the one sued on in this action, to any person under or over any specified age. It may be safely assumed, in the absence of any averment to the contrary, that appellee was incorporated under and pursuant to the provisions of an act entitled “An act for the incorporation of insurance companies, defining their powers and prescribing their duties,” approved June 17, 1852, and in force since May 6, 1853, (1 Rev. St. 1876, p. 584, et seq.) In section 20 of this act (section 3727, Rev. St. 1881) the general power is conferred upon corporations, such as the appellee, to “make insurances * * * on the life or health of any person,” without limitation...