Howe v. Provident Fund Soc.

• Decision Date: 22 September 1893
• Citation: 7 Ind.App. 586,34 N.E. 830
• Parties: HOWE v. PROVIDENT FUND SOC.
• Court: Indiana Appellate Court

7 Ind.App. 586

34 N.E. 830

HOWE

v.PROVIDENT FUND SOC.

Appellate Court of Indiana.

Sept. 22, 1893.

Appeal from circuit court, Bartholomew county; Marshall Hacker, Judge.

Action by James Howe against the Provident Fund Society on a policy of insurance. Judgment for defendant. Plaintiff appeals. Reversed.

John W. Donaker, for appellant. Finch & Finch, for appellee.

REINHARD, J.

We take the following statement, which we find substantially accurate, from the brief of appellee's counsel: This was an action brought by the appellant against the appellee upon a policy of accident insurance, to recover for eight weeks' disability, at the rate of $25 per week. The questions to be discussed arise under the fifth and sixth paragraphs of answer, and the replies of appellant to the said paragraphs of answer. The fifth paragraph of answer alleges that the appellee is “a corporation of the state of New York, organized for the purpose to collect and accumulate a fund to be held and used for the mutual benefit and protection of its members, (or their beneficiaries,) the business of the society being divided into life, sick benefits, and accident departments; its accident department being for the purpose of furnishing to its members indemnity to amount of actual loss suffered by them by reason of accidental injuries, within the terms of the certificate of membership, and the application made therefor. That it is purely mutual, and derives its funds to meet claims of members solely by assessments made on members. That applicants for membership are admitted upon written applications for membership. *** That said James Howe, plaintiff, in said application for membership, stated as follows: ‘I hereby apply for membership, to be based on the following statements of facts, which I warrant to be true.’ And that said plaintiff further stated in said application: ‘My weekly income exceeds the amount of weekly indemnity herein applied for.’ Defendant says that the statement of said plaintiff as to his weekly income was false and untrue, and a breach of the warranty contained in the application and policy, in this, to wit, that whereas, in the application for membership in defendant society, the plaintiff applied for membership in ‘Class A,’ with weekly indemnity of twenty-five dollars per week, the weekly income of plaintiff did not exceed fifteen dollars per week.” The sixth paragraph of answer alleged the same facts as to the mutuality of the society, and, further, “that it is provided in said application as follows: ‘And I agree that the benefits to which I shall be entitled shall be governed and paid in the same ratio that my weekly income bears to the amount of weekly indemnity insured for.’ *** Defendant says that the weekly indemnity applied for by plaintiff, and insured to him by said policy, was twenty-five dollars ($25) per week; and that the weekly income of plaintiff at the time of his injury complained of was fifteen dollars, ($15;) wherefore defendant says that, if plaintiff be entitled to recover anything by reason of said alleged accidental injury, plaintiff is only entitled to recover, under the terms of said agreement, the sum of fifteen dollars ($15) per week, weekly indemnity, for the time he may have been disabled by reason of said alleged injuries.” To the said fifth and sixth paragraphs of answer the appellant filed special replies, alleging that he had told the agent that his weekly income was but $15 per week, and that the agent, without his knowledge or consent, had inserted the false answer in the application, and that the application was wholly written and filled out by the agent of the appellee, and that he had no knowledge of any false answers in said application. To these replies a demurrer was filed, and sustained by the court. The appellant then withdrew the general denial, and judgment was rendered on the pleadings in favor of appellee.

The errors assigned for argument here by the appellant are-First. The court erred in sustaining defendant's (appellee's) demurrer to plaintiff's second paragraph of reply to defendant's fifth paragraph of answer to plaintiff's (appellant's) complaint. Second. The court erred in sustaining defendant's demurrer to plaintiff's second paragraph of reply to defendant's sixth paragraph of answer to plaintiff's complaint.

The first question we are to decide, and which is involved in the ruling of the court upon the demurrers to the reply, relates to the alleged misrepresentation respecting the appellant's weekly income. The statement in the application concerning this is a warranty, and it is not controverted in appellant's brief that the averment contained in the fifth and sixth paragraphs of the answer upon this subject will work a forfeiture, unless they are overcome by the allegations in the reply. The fifth paragraph of the answer makes the application an exhibit, and in it the following provision is contained: “Inclosing fee of $5.00, I hereby apply for membership, to be based upon the following statement of facts, which I warrant to be true; and I agree to accept a certificate of membership subject to all its conditions and provisions, and also agree that said society shall not be bound by any statement made to, or knowledge possessed by, any agent or broker not written in this application, hereby appointing such person my agent to enter my answers to the following statements.” Is the appellant concluded by this statement in his application, so that he may not show that the person who wrote the same was in fact the agent of the company, and not his agent, and that the language ascribed to him was in fact not his, but that of the agent? This question, we do not hesitate to say, must be answered in the negative. Whether the writer of the instrument is the agent of the applicant or of the company must depend, not solely upon the stipulation of the parties, either in the application or in the policy, or in both, but upon the facts and circumstances surrounding the transaction, and disclosing the actual relations the parties sustained to each other when the application was made. The mere fact that the representative of an insurance company writes in an application the words, “This man is my agent,” and causes the applicant to sign the same without disclosing to him the contents of such application, does not necessarily constitute him the applicant's agent, if he be not such in fact. It is, at most, but an admission, and admissions are never conclusive. If the facts constituting the agency are in dispute, so as to leave the question as to whose agent he is in doubt, then an admission may serve to assist in solving the doubt, and bind the party making it. But, when the facts are established, the law determines whether or not there is an agency, and no admission can change it. If A. says he stole B.'s horse, but the facts show that he did not steal it, the admission does not make him a thief in the eyes of the law. The stipulation is but an attempt to evade the law of agency, and cannot be given a controlling force when it is shown that in fact there was no such agency. Insurance Co. v. Hartwell, 100 Ind. 566;Insurance Co. v. Crutchfield, 108 Ind. 518, 9 N. E. Rep. 458; Insurance Co. v. Allen, 109 Ind. 273, 10 N. E. Rep. 85; Commercial Union Assur. Co. v. State, 113 Ind. 331, 15 N. E. Rep. 518; Geiss v. Insurance Co., 123 Ind. 172, 24 N. E. Rep. 99; Insurance Co. v. Golden, 121 Ind. 524, 23 N. E. Rep. 503; Rogers v. Insurance Co., 121 Ind. 570, 23 N. E. Rep. 498; Insurance Co. v. Stark, 120 Ind. 444, 22 N. E. Rep. 413; Insurance Co. v. Pickel, 119 Ind. 155, 21 N. E. Rep. 546; Pickel v. Insurance Co., 119 Ind. 291, 21 N. E. Rep. 898; Insurance Co. v. Lunkenheimer, 127 Ind. 536, 26 N. E. Rep. 1082.

Counsel for appellant contend, however, that...