Masons' Union Life Ins. Ass'n v. Brockman

• Decision Date: 20 May 1898
• Citation: 50 N.E. 493,20 Ind.App. 206
• Parties: MASONS' UNION LIFE INS. ASS'N v. BROCKMAN.
• Court: Indiana Appellate Court

20 Ind.App. 206

50 N.E. 493

MASONS' UNION LIFE INS. ASS'N

v.BROCKMAN.¹

Appellate Court of Indiana.

May 20, 1898.

Appeal from circuit court, Johnson county; W. J. Buckingham, Judge.

Action by Barbara A. Brockman against the Masons' Union Life Insurance Association. From a judgment for plaintiff, defendant appeals. Reversed.

Hacker & Remy, Miller & Barnette, V. G. Clifford, W. F. Browder, and W. S. Moffett, for appellant. J. F. Cox and M. L. Herbert, for appellee.

WILEY, J.

Appellee, as beneficiary of Henry Brockman, deceased, sued appellant upon a life insurance policy issued by appellant on the life of said Brockman. The complaint was in three paragraphs, but, as a demurrer was sustained to the first, no further notice need be taken of it. In the second paragraph it is averred that appellant, on the 19th day of March, 1892, issued a policy of insurance upon the life of Henry Brockman, in the sum of $1,000, for and in consideration of a certain initiation fee and premium, which were paid; that by the terms of the policy monthly payments, etc., were to be made, on or before the 20th day of each month, to the agent of appellant, in the city of Columbus, Ind.; that, in pursuance to said provision of the policy, said Henry Brockman paid all said monthly installments as they became due, up to the day of June 20, 1894, and on said day, and when said monthly installments became due, he tendered to appellant, through its authorized agent, the sum of $2.15, in legal tender money of the United States, which was the amount of said monthly premium, but which appellant refused to accept for the reason then claimed by appellant that said Henry Brockman forfeited his policy by reason of drinking intoxicating liquors, and that appellant then and there declared, through its agent, that it would not accept any more dues or installments of premiums from said Brockman; that said Brockman was at all times ready and willing and able to pay all premiums, etc., as appellant well know, and that he performed all the conditions of said policy on his part; that said Brockman died on the 6th day of August, 1895; that when said policy was issued, and all the time up to his death, appellee was his wife; that on April 18, 1895, she furnished appellant with proof of loss and of the death of said Brockman, and performed all of the conditions of said policy on her part; that appellant has not paid said sum, and that it is due, etc. A copy of the policy is filed as an exhibit to the complaint. The third paragraph of complaint is in all essential respects like the second, differing from it only in some immaterial averments as to the agents of appellant, and the payment to them of dues, etc. A demurrer to each of these paragraphs of complaint was overruled, and such ruling is assigned as error. Counsel, however, have failed to discuss their sufficiency, and hence the question is waived.

Appellant answered in three paragraphs, but no question is presented as to the sufficiency of the answer, and it is unnecessary to state, even briefly, its contents. There was a trial by jury, and a general verdict for appellee. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict.

The overruling of the motion for a new trial is the only alleged error discussed. Appellee insists that the bill of exceptions was not filed in time, and hence the evidence, instructions, etc., are not in the record; but this insistence is not tenable.

Before taking up the questions presented by counsel, we deem it proper to say that appellant's defense rested upon an alleged violation of the terms of the policy, and application, which was made a part of the policy; and the second paragraph of answer averred that in said application said Brockman stated and warranted that he was a total abstainer from the use of intoxicating liquors, and that he did not then, nor would he in the future, “practice any pernicious habit that obviously tended to shorten life,” and that after the policy of insurance was issued, and for several months prior to his death, said Brockman drank intoxicating liquors to excess, which was a “pernicious habit, and obviously tended to shorten his life,” whereby said policy was forfeited. It was upon this line that the defense was made, and appellant earnestly contends that the facts disclosed by the record, based upon its answer, will preclude a recovery. Upon this question, however, we cannot disturb the judgment, for the reason that the evidence is conflicting, and the jury having passed upon it puts it to rest.

In his application for insurance the decedent, Brockman, stated, in answer to certain questions, that he had had delirium tremens, and that he had been insane. He also stated that at the time of his application he did not use intoxicating liquors. It is an undisputed fact, as it appears from the record, that Brockman, prior to the issuing of the policy sued on, was an habitual drinker of intoxicating liquors, had had the delirium tremens, and had been in the hospital for the insane. It is the theory of the appellee, and the evidence seems to sustain it, that after the policy was issued the insured had la grippe, and the contention of appellee is that the disease left him greatly impaired in health, and to such an extent that at times when he was walking he became dizzy, which made him walk and stagger as a drunk man. On the other hand, the theory of the appellant is that his staggering and dizziness was caused by intoxication. It is upon these two theories that the sharp contention arises, and, with this in view, we proceed to a consideration of such questions as are raised by the motion for a new trial and discussed by counsel.

The seventeenth reason assigned for a new trial was sustaining appellee's objection to the following question propounded to Ed. King, a witness for appellant: “Q. State to the jury whether you observed Mr. Brockman's habits and conduct previous to the time he went to the asylum, whether or not he was boisterous.” Upon the court's refusal to permit the witness to answer this question, appellant stated in writing what it offered to prove as follows: “The defendant offers to prove by this witness, in answer to this question and others, that he had an acquaintance with Henry Brockman, and had seen him both when drunk and sober for a long period of time, and was acquainted with the peculiarities and ordinary actions of said Henry Brockman when drunk; and offers further to prove that said Henry Brockman, when drunk, never was at any time noisy or boisterous, and that his conduct at the times when he saw him drunk since March 19, 1892, was the same as when he saw him drunk before that time.” And the record shows that, upon objection of appellee, the court refused to entertain such evidence, or let the same be proven to the jury. On cross-examination of some of appellant's witnesses, appellee sought to elicit the fact that Brockman was at no time noisy or boisterous, and that his actions and conduct were those of a sick and feeble man, rather than of one who was drunk. The evidence which was offered to contradict this fact, so far as possible, was by showing that before he was in the asylum, and when it is admitted that he was drinking to excess, he was not noisy and boisterous, and that his conduct then, when intoxicated, corresponded to his conduct after the issuing of the policy, when it was claimed by appellant that his conduct was the result of drunkenness, and not sickness, etc.

We are not prepared to say whether or not the court erred in excluding the offered evidence, but it seems clear to us that what appellant offered to prove by the answer to the question to which an objection was sustained was not responsive. The offer to prove was so much broader than the question, and included so many elements not embraced by the question, that there was no available error in excluding it. An offer to prove a fact or facts by “other questions,” which “other questions” are never asked, is not reviewable in an appellate tribunal. The question asked the witness might have been properly answered, for it asked the witness to state a distinct fact, but, where error is predicated upon the exclusion of evidence, the only way to present it is to ask the question, and then it is for the court to determine its competency. When a litigant offers to prove a fact or facts in answer to a question asked of a witness, and “other questions,” which are never asked, there is no error in refusing the offer, if the offer embraces more and is of wider range than the question asked. Neither the trial nor appellate court can know whether a question in the mind of an attorney is competent or incompetent, when such a question is not made known to the court. To save the point on appeal, the question must be asked the witness, and the proper exception reserved. Gipe v. Cummins, 116 Ind. 511, 19 N. E. 466. See, also, City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686;Binford v. Young, 115 Ind. 174, 16 N. E. 142.

The only responsive and legitimate answer that could have been made by the witness King to the question asked him was that he did or did not observe Brockman's habits prior to the time he went to the asylum, and that he was or was not boisterous or noisy. While it might have been competent for the witness to answer this question, the error in excluding it, if it was error, was not, in our judgment, harmful; for, looking at the whole record, it could not possibly have changed the result. A judgment will not be reversed for a harmless error. Rhinehart v. Niles, 3 Ind. App. 553, 30 N. E. 1;Passmore v. Passmore, 113 Ind. 237, 15 N. E. 338;Whitworth v. Ballard, 56 Ind. 279.

The fourteenth reason assigned for a new trial was the refusal of the court, over appellee's objection, to permit J. F. Pancake to answer the following question: “Q. You may state if you ever had any conversation with Henry Brockman in...