Life Assurance Company of America v. Haughton

• Decision Date: 19 June 1903
• Docket Number: 4,413
• Citation: 67 N.E. 950,31 Ind.App. 626
• Parties: LIFE ASSURANCE COMPANY OF AMERICA v. HAUGHTON ET AL
• Court: Indiana Appellate Court

67 N.E. 950

31 Ind.App. 626

LIFE ASSURANCE COMPANY OF AMERICA v. HAUGHTON ET AL

No. 4,413

Court of Appeals of Indiana

June 19, 1903

Opinion modified November 18, 1903.

From Knox Circuit Court; O. H. Cobb, Judge.

Action by Pernilla P. Haughton and others against the Life Assurance Company of America. From a judgment for plaintiffs, defendant appeals.

Reversed.

A. C Ayres, A. Q. Jones, J. E. Hollett and W. C. Johnson, for appellant.

W. A Cullop, G. W. Shaw, Alvin McClure and J. T. Goodman, for appellees.

OPINION

WILEY, J.

Appellees sued appellant upon an insurance policy issued upon the life of one George A. Haughton, appellees being named therein as beneficiaries. The complaint was in a single paragraph. The cause was put at issue by answer and reply. Trial by jury, resulting in a verdict in favor of appellees. With the general verdict the jury answered and returned interrogatories. After the return of the verdict and answers, appellant moved the court that the jury be required to retire to the jury room and answer certain of the interrogatories more definitely, which motion was overruled. It also moved for judgment on the answers to interrogatories notwithstanding the general verdict. Appellant's motion for a new trial was also overruled.

The assignment of errors presents for review the overruling of the demurrer to the complaint, the overruling of the demurrer to the second paragraph of reply, and the overruling of the motions for judgment on the interrogatories and for a new trial.

The only objection urged to the complaint is-that there is no specific averment, or its equivalent, concerning proof as to the cause of death. There is a provision in the policy that the appellant would pay to the beneficiaries "immediately upon receipt and approval of proofs of the death and cause of death of George A. Haughton," the insurance. The policy also contained this provision: "Proofs of death must be furnished the company at its home office within one year after the death of the assured, and must comply fully with the company's form." No complaint is made as to the form of the proof of death. In the latter provision to which we have referred, it is not made a condition precedent to the right to recover on the policy that proof of the cause of death should be made. The policy nowhere limits the liability of the company on account of death from any specific cause, but, by its terms, agrees to pay the amount specified upon the death of the assured from any cause, upon proof of death. Taking the policy as a whole, and construing the contract of insurance most strongly against the appellant, as we must, we think that the first provision relating to proof of death and cause of death, is so qualified by the latter that the inference is fair and reasonable that the parties intended as a condition of payment only that proof of death should be made. The complaint avers that due proof of death was made. The objection to the complaint upon this point is not well taken, and the demurrer was correctly overruled.

If it be conceded that the second paragraph of reply was not sufficient, the action of the court in overruling a demurrer to it was harmless, for the jury were instructed that appellees did not introduce any evidence in support of it, and that therefore it should not be considered. Counsel for appellant admit that if the ruling was error it is not available.

While not in the order in which counsel have discussed the questions presented by the record, we will next consider the refusal of the court, on appellant's motion, to require the jury to answer more specifically certain interrogatories which they returned with the general verdict. Counsel for appellees contend that the question is not presented by the record, because there is no formal entry that the interrogatories were properly submitted by the court, and that the jury was not instructed touching their duty in relation thereto. The statute provides that in all cases, except suits in equity, upon the request of either party, the court shall instruct the jury to find specially upon particular questions of fact, to be stated to them in writing in the form of interrogatories, on any or all the issues in the cause. It is also provided that the interrogatories shall be recorded with the verdict. § 555 Burns 1901. The legislature having made these provisions, courts should give litigants such benefit and relief as they are entitled to by reason thereof, whenever the question is properly presented. Even where the parties have not requested it, the court, on its own motion, may submit interrogatories, and may also revise those submitted. Killian v. Eigenmann, 57 Ind. 480; Lauter v. Duckworth, 19 Ind.App. 535, 48 N.E. 864; Hammond, etc., R. Co. v. Spyzchalski, 17 Ind.App. 7, 46 N.E. 47; Senhenn v. City of Evansville, 140 Ind. 675; Louisville, etc., R. Co. v. Worley, 107 Ind. 320, 7 N.E. 215.

The record shows the following: "And now, the arguments of counsel being made, the jury having received the instructions of the court, * * * they retire in charge of a sworn bailiff to consider their verdict." Then follows an order-book entry in these words: "Come again the parties, come also the jury, and return in open court their general verdict for plaintiffs, as follows." Then follows the general verdict, signed by the foreman. Immediately following the general verdict is this entry: "And also return interrogatories and their answers thereto as follows." Following this are thirty-one interrogatories, all of which are answered in some form, and each answer is signed by the foreman of the jury. Before the jury were discharged, counsel for appellant objected to the answers to the interrogatories, as being indefinite and insufficient, and interposed a motion to require the jury to answer them definitely, etc., and this motion was overruled. The motion and ruling thereon are brought into the record by bill of exceptions. One of the causes for a new trial was the action of the court in overruling this motion. If the interrogatories and answers thereto are properly in the record, they are subject to review. As the record is silent as to the submission of the interrogatories, and the court and counsel treated them as properly before the court and jury, and no objection of appellees appears in the record, and as interrogatories can only go to the jury by the consent and knowledge of the court, we must presume that they were properly submitted, and that the court discharged its duty in that regard. It appears from the record that the jury returned into open court, with their general verdict, their answers to a series of interrogatories, and that such interrogatories are set out in the record immediately following the general verdict, in harmony with the provisions of the statute. Under such facts it can not be presumed, in the absence of any further showing, that the court thus received from the jury, and made part of the record of the cause, answers to interrogatories which had not been submitted properly to the jury, with correct instructions concerning them. Byers v. Davis, 3 Ind.App. 387, 29 N.E. 798; Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N.E. 616; Pennsylvania Co. v. Meyers, 136 Ind. 242, 36 N.E. 32; Frank v. Grimes, 105 Ind. 346, 4 N.E. 414. Our conclusion is that the interrogatories and answers are properly in the record, and that the refusal of the court to require the jury to make their answers more definite and specific is reviewable.

Appellant rested its defense upon the ground of breach of warranty as to specific facts stated in the application for insurance. It is urged that when he made application for the insurance he was then afflicted-with a malignant and fatal disease, and that it soon thereafter caused his death; also that he purposely and fraudulently concealed such fact from appellant. His application for the insurance was in writing, in which he gave specific answers to many direct and pointed questions, and his answers thereto were warranted to be true. The following are some of the questions and answers: "Have you any disease or disorder? If so, what? A. None." "For what have you sought medical advice in the past seven years? A. None." "Have you ever had any of the following? Answer concerning each, give particulars under head of remarks." Then follows a long list of diseases, etc., and among them there are: "Swelling of glands;" "tumors of any kind;" "ulcers or open sores." "Have you had any illness, injury, disease, or disorder other than as stated herein?" To each of these last inquiries he answered, "No." By his application and answers to all questions propounded he represented himself as sound in body, and free from any disease or disorder.

It is averred in the answer that soon before he made application for insurance, he had consulted two physicians about a swollen and diseased testicle, and that at the time he made his written application he had arranged to have a surgical operation performed to remove the diseased member that he had been advised by his physician that such operation was necessary to save his life, and that possibly that would not do it; that such operation was soon thereafter performed; that his disease was of a cancerous character, and that it caused his death. By the...