Knights And Ladies of Columbia v. Shoaf

• Decision Date: 25 April 1906
• Docket Number: No. 20,784.,20,784.
• Citation: 166 Ind. 367,77 N.E. 738
• Parties: KNIGHTS AND LADIES OF COLUMBIA v. SHOAF et al.
• Court: Indiana Supreme Court

166 Ind. 367

77 N.E. 738

KNIGHTS AND LADIES OF COLUMBIA

v.SHOAF et al.

No. 20,784.

Supreme Court of Indiana.

April 25, 1906.

Appeal from Circuit Court, Fountain County; Jos. M. Rabb, Judge.

Action by John O. Shoaf and others against the Knights and Ladies of Columbia. From a judgment for plaintiffs, defendant appeals. Case transferred from Appellate Court, under Burns' Ann. St. 1901, § 1337u. Reversed, with directions to sustain defendant's demurrer to the reply.

Lucas Nebeker, for appellant. W. H. Cox and V. E. Lavengood, for appellees.

MONTGOMERY, J.

This action is upon a beneficiary certificate issued by appellant to Bertha A. Shoaf in favor of appellees. The errors relied upon for a reversal of the judgment are (1) the overruling of appellant's demurrer to the second paragraph of reply, and (2) the overruling of its motion for a new trial.

Appellant's answer averred in substance that the application for insurance disclosed the pregnancy of Mrs. Shoaf and that prior to the issuance of the certificate in suit, she executed a release whereby she waived all benefit under the certificate in case of her death arising from pregnancy, and that within four months thereafter her death resulted from such pregnancy. The second paragraph of reply admitted that Mrs. Shoaf executed the waiver as alleged and died from puerperal fever, which arose six days after the birth of the child with which she was pregnant at the time of the issuance of said certificate, but it avers that after the execution of said waiver, with full knowledge thereof, the policy was issued promising to pay the whole amount of said insurance in case of her death, and that after the death of said Bertha A. Shoaf, with full knowledge of the cause thereof, and of all the facts set forth in the answer, appellant required appellees to make full proofs of death, to have a guardian appointed for Edith Shoaf, a minor beneficiary, and required John O. Shoaf to make a trip to Frankfort to meet its supreme counselor, all at an expense of $-, whereby it had waived such defense, and ought to be estopped from asserting the same.

This reply in theory and substance confesses that the death of Mrs. Shoaf arose from pregnancy, and that she had waived indemnity therefor, but attempts to set up matter in avoidance of the natural consequence of such facts. The application, waiver, and certificate, as pleaded in the answer, taken together constituted the contract. Construing these writings together it is manifest that Mrs. Shoaf was not insured against death arising from her existing pregnancy. Appellees cannot, therefore, recover for death resulting from a cause expressly exempted by the terms of the contract, unless appellant has been guilty of such misleading conduct as ought to preclude it from receiving the benefit of its alleged defense: The reply must aver such facts and circumstances as constitute an estoppel in pais to make it sufficient to avoid the answer to which it is addressed. Sharpe v. Commercial, etc., Ass'n, 139 Ind. 92, 37 N. E. 353. Appellees' counsel discuss the reply as though in order to avoid this answer it were only necessary, to show a waiver on the part of appellant of the breach of a condition subsequent. The answer, if true, shows that appellees never had any right of action for the death sued for, not that the right of action once existed but was subsequently forfeited because of the breach or nonperformance of a condition of the contract. The reply does not deny that appellees had full knowledge of the provisions of the contract, nor does it charge that they were misled or deceived by the conduct of appe...