Michigan Mut. Life Ins. Co. v. Leon

• Decision Date: 29 May 1894
• Citation: 37 N.E. 584,138 Ind. 636
• Parties: MICHIGAN MUT. LIFE INS. CO. v. LEON.
• Court: Indiana Supreme Court

138 Ind. 636

37 N.E. 584

MICHIGAN MUT. LIFE INS. CO.

v.LEON.¹

Supreme Court of Indiana.

May 29, 1894.

Appeal from circuit court, Delaware county; O. J. Lotz, Judge.

Action by the Michigan Mutual Life Insurance Company against Nettie Leon. Judgment for defendant. Plaintiff appeals. Affirmed.

McMaster, Boice, Ryan & Thompson, for appellant. Ralph S. Gregory, A. C. Silverburg, and James N. Templer, for appellee.

COFFEY, J.

This was an action by the appellant, a foreign insurance company, commenced in the Delaware circuit court, against the appellee and her husband, Leonidas Leon, to cancel a policy of insurance issued upon the life of the latter, and payable to the former. The complaint alleges, among other things, as a ground for cancellation, that the policy was procured by means of false and fraudulent answers to questions contained in the application for the policy, upon which false answers the appellant relied at the time it issued the policy, among which questions and answers were the following: “Has any application for insurance upon your life ever been made to any company upon which a policy has not been granted? No. Has any unfavorable opinionupon the insurableness of your life ever been given by a physician? No.” It is alleged in the complaint that the answers to these questions were false. During the pendency of the suit, Leonidas Leon died, whereupon the appellee, to whom the policy is payable, after notice and proof of such death, and the refusal of the appellant to pay, filed a cross complaint, based upon such policy, seeking to recover the amount secured thereby. Issues were formed upon the complaint and cross complaint, which were tried by the court without the intervention of a jury, resulting in a special finding of the facts in the case, with conclusions of law thereon, upon which the court rendered judgment in favor of the appellee, on her cross complaint, for the full amount of the policy, and against the appellant for costs on the original complaint.

The merits of the controversy turn upon the questions and answers above set out. As the special finding of facts is full, and will enable us to determine the controversy upon its merits, it is unnecessary that we should further notice the pleadings in the case, except to remark that such finding is, in our opinion, within the issues thereby tendered. So much of the special finding as relates to these questions and answers is, substantially, as follows: On the 21st day of February, 1889, the plaintiff, the Michigan Mutual Life Insurance Company, was then and is now a corporation, organized under the laws of the state of Michigan, with its principal office in the city of Detroit, in said state, and was then and is now doing a general life insurance business; and that, on said day, said corporation was engaged in doing a general life insurance business in the state of Indiana; and that one Jacob Frankel was then, and ever since has been, and is now, the general agent of said corporation, for the state of Indiana (except in the counties of Jay and Huntington, in said state), with full power to solicit applications for insurance for said company upon blanks furnished by it, and to deliver all policies issued by said company in said state, except in the counties aforesaid, and to collect premiums thereon; but that said Frankel had no power to issue policies of insurance in said company, or to determine whether policies should or should not be issued upon such application. That said Frankel had and has no superior officer or agent over him in said state. That policies of insurance were issued by the executive officers of said company at its home office in the city of Detroit, upon the approval of such application by the medical director of said company. That on said 21st day of February, 1889, said Frankel, as such agent, was introduced to, and made the acquaintance of, one Leonidas Leon at his place of business in the city of Muncie, Ind. That said Frankel thereupon informed said Leon that he was the state agent for the Michigan Mutual Life Insurance Company, and stated that he desired the said Leon to make application for insurance on his life in said company. That said Leon, and others then present, thereupon informed the said Frankel that it would be useless for the said Leon to make such application, for the reason then given that he, the said Leon, had been refused insurance on his life, and rejected, by the Connecticut Mutual Life Insurance Company, about two years before that time. That, after receiving such information, the said Frankel stated to the said Leon that said refusal and rejection made no difference, because two years had elapsed since then. That said Leon then informed and stated to said Frankel that, if such rejection by said Connecticut Mutual Life Insurance Company made no difference, he was willing to apply for insurance upon his life in the company represented by said Frankel. That said Frankel, as such agent, then produced to said Leon a blank application for insurance in said Michigan Mutual Life Insurance Company, and read over to said Leon, separately, each question contained in said blank application. That, among other questions propounded by said Frankel to said Leon, was the following: “Has any application for insurance upon your life ever been made to any company, upon which a policy has not been granted?” And to said question the said Leon made answer: “Yes; I made application in the Connecticut Mutual Life Insurance Company about two years ago, and was rejected.” That said Frankel, with full knowledge of the answer made by said Leonidas Leon, did not write the said answer as made by said Leon, but, instead thereof. wrote on said application blank the word “No” as the answer thereto. That said Frankel also propounded to said Leon the following question: “Has any unfavorable opinion upon the insurableness of your life ever been given by a physician?” To which said question the said Leon then and there made answer, “Yes.” That said Frankel, with full knowledge of said answer to said question, as made by the said Leon, wrote as the answer thereto the word “No” on said application blank. That all the answers to all other questions contained in said application blank were truthfully made by the said Leon, and were truthfully and correctly written thereon by said Frankel. That all the answers written on said application blank were written by said Frankel, while acting as the agent of the plaintiff, as aforesaid. That said application was written at the business house and upon the writing desk occupied therein by said Leon, and in the immediate presence and within from four to five feet of said Leon. That immediately after all of the questions on said application blank had been propounded to said Leon, and the answers thereto written on said application blank by said Frankel, the said Leon signed his own name and the name of his wife, Nettie Leon, thereto. That the said Leon did not read said application, or the answers to any of the questions as written thereon, and did not hear the same read by any other person, and had no actual knowledge that any answer or answers had been incorrectly or untruthfully written to any question or questions in said application; nor did he read or have read to him said application, or any part thereof, before signing his name thereto. That said Leon was then an intelligent and capable business man of the age of 27 years, and could and might have read said application, and answers contained therein, had he so desired. That, subsequent to the signing of said application, said Leon was examined by Dr. G. W. H. Kemper, the local medical examiner of said Michigan Mutual Life Insurance Company in the city of Muncie. That said medical examiner made a certificate of his said examination of said Leon upon the reverse...