Metro. Life Ins. Co. v. Willis

• Decision Date: 03 January 1906
• Docket Number: No. 5,567.,5,567.
• Citation: 37 Ind.App. 48,76 N.E. 560
• Parties: METROPOLITAN LIFE INS. CO. v. WILLIS.
• Court: Indiana Appellate Court

37 Ind.App. 48

76 N.E. 560

METROPOLITAN LIFE INS. CO.

v.WILLIS.

No. 5,567.

Appellate Court of Indiana, Division No. 2.

Jan. 3, 1906.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Cassius M. C. Willis, administrator, against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Smiley N. Chambers, Samuel O. Pickens, Charles W. Moores, Robert Franklin Davidson, and Owen Pickens, for appellant. John M. Bowlus, for appellee.

WILEY, J.

From a judgment against appellant upon a life insurance policy, it prosecutes this appeal. Complaint in one paragraph, answer in three, and reply in two. No question is presented as to the sufficiency of any of the pleadings, except the complaint, and that is waived by a failure to discuss it. Trial by the court, resulting in a general finding and judgment for appellee. Appellant's motion for a new trial overruled.

Under the assignment and the argument in support thereof, it is entitled to have reviewed the ruling of the court on its motion for a new trial. Four questions are presented by the motion: (1) That the finding is not sustained by sufficient evidence; (2) that the finding is contrary to law; (3) that the court erred in overruling appellant's motion to find for it; and (4) that the court erred in admitting and refusing to admit certain evidence.

The policy of insurance upon which the action is based was issued upon the written application of the insured. In that application he answered certain questions, and warranted such questions to be true. Such warranty is as follows: “And I further declare, warrant, and agree that the representations and answers made above are strictly correct and wholly true, that they shall form the basis and become part of the contract of insurance, if one be issued, and that any untrue answers will render the policy null and void, and that said contract shall not be binding upon the company unless upon its date and delivery the insured be alive and in sound health; *** and I expressly agree and stipulate that in any suit upon the policy herein applied for, any physician who has attended or may hereafter attend me may disclose any information acquired by him in any wise affecting the declarations and warranties herein made.” In his application his answers and representations that are at all material are as follows: “I have never had any disease of the brain. *** I am now in sound health, *** nor have I any *** mental defect or infirmity of any kind. *** The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me: 1900. Dr. Johnson. Grip. *** I have not been under the care of any physician within two years, unless as stated in the previous line, except [blank]. *** I have never met with any serious personal injury, nor never been seriously ill, except as stated below, and for the complaint named, and no other, when I was attended by the following named physicians and no other [blank].” This application was made and dated June 1, 1901. The policy was dated June 10, 1901, and delivered the following day. Between the dates of the application and the delivery of the policy an inquest had been held, inquiring into the mental condition of the insured, and he was declared to be insane, and was ordered to be incarcerated in the insane asylum. He was so incarcerated, and within about two years died of paresis. The evidence is without contradiction that the insured was insane for some time before he applied for insurance, and was so when the policy was issued; that he remained in that condition until he died; and that the cause of his death was a diseased brain. The evidence also shows that about five years before the policy was issued the insured received a great mental shock by having a sunstroke. It also shows that in 1899 he had malarial fever, and was attended by Dr. Johnson; also, that for six months or more before June, 1901, he had been attended and prescribed for by two other physicians. The policy recites that it is issued upon the written application of the insured, and that no obligation is assumed, unless, on the date the policy is delivered, “the insured is alive and in sound health.” The evidence shows conclusively that he was not in “sound health” when the policy was delivered. It is unnecessary to cite authorities in support of the proposition that an insurance company has the right to make such conditions a part of its contract of insurance. These undisputed facts establish such a breach of the contract as to relieve appellant of liability. Neff v. Metropolitan, etc., Co. (Ind. App.) 73 N. E. 1041;Thompson v. Travelers' Ins. Co. (N. D.) 101 N. W. 900;Stringham v. Mutual Life Ins. Co. (Or.) 75 Pac. 822.

It does not necessarily follow, however, that...