Indiana Mfrs'. Reciprocal Ass'n v. Holmes

• Decision Date: 05 December 1922
• Docket Number: No. 11457.,11457.
• Citation: 79 Ind.App. 85,137 N.E. 337
• Parties: INDIANA MFRS'. RECIPROCAL ASS'N et al. v. HOLMES.
• Court: Indiana Appellate Court

79 Ind.App. 85

137 N.E. 337

INDIANA MFRS'. RECIPROCAL ASS'N et al.

v.HOLMES.

No. 11457.

Appellate Court of Indiana, Division No. 1.

Dec. 5, 1922.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by O. A. Holmes, employee, against the Indiana Manufacturers' Reciprocal Association, as insurance carrier, and Indianapolis Body Corporation, employer. From an award of the Industrial Board in favor of plaintiff, defendants appeal. Affirmed.

Jos. W. Hutchinson, of Indianapolis, for appellants.

White, Wright & McKay, of Indianapolis, for appellee.

ENLOE, J.

The appellee, on the 18th day of January, 1922, was an employee of the Indianapolis Body Corporation, and earning a weekly wage in excess of $24. On that day he received an injury to his left hand, causing the loss, by amputation, of the second, third, and fourth fingers. He made application for an award of compensation against his employer and the appellant association, as being the insurance carrier. To this application both appellants appeared, and the said association filed its special answer denying that at the time the appellee was injured it was the insurance carrier of said Body Corporation.

A hearing was first had before one member of the Board, and resulted in an award being made in favor of appellee. Afterward, upon application for review, the cause was heard by the full Board, which found in favor of the appellee and awarded him compensation for 140 weeks, from which award this appeal is prosecuted.

There is no contention that appellee did not receive a compensable injury, but appellant reciprocal association insists that it was not the insurance carrier, and therefore not liable. It admits that it issued its policy to its coappellant, but says that because of the failure of such coappellant to pay the premium, said policy by its express terms never took effect as an insurance contract.

[1] The provision in said policy as to the payment of the premium therefor in advance, being a condition in favor of the association, could be, by it, waived. As was said in Home Ins. Co. v. Gilman, 112 Ind. 7:

“The authorities justify the statement, that where a duly authorized agent of an insurance company delivers a policy of insurance which acknowledges on its face that the premium has been paid, such acknowledgment concludes the company from thereafter denying that the premium was paid, for the mere purpose of assailing the legal existence of the policy. *** It is well settled that payment of the...