Modern Woodmen of America v. Ball

• Decision Date: 23 June 1921
• Docket Number: No. 10822.,10822.
• Citation: 131 N.E. 539,77 Ind.App. 388
• Parties: MODERN WOODMEN OF AMERICA v. BALL.
• Court: Indiana Appellate Court

77 Ind.App. 388

131 N.E. 539

MODERN WOODMEN OF AMERICA

v.BALL.

No. 10822.^*

Appellate Court of Indiana, Division No. 2.

June 23, 1921.

Appeal from Superior Court, Allen County; Wm. N. Ballou, Judge.

Action by Cecelia Ball against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Instruction No. 2, given at plaintiff's request, was as follows:

(2) The burden of proving the material allegations of the plaintiff's complaint and replies by preponderance of all the evidence is upon the plaintiff, while, on the other hand, the burden of proving the material allegations of the defendant's answers by preponderance of all evidence is upon the defendant. Therefore, if the plaintiff has proved the material allegations of her complaint and the material allegations of said answers have not been proved by a preponderance of the evidence, your verdict should be for the plaintiff.

If you find, from the evidence, that the plaintiff's decedent was a member in good standing of the defendant at the time of his death under the certificate of membership sued on herein, and that the defendant was notified by the plaintiff of the death of the decedent, and at said time or thereafter denied liability under said certificate of membership, and received and accepted proof of death of the decedent by the plaintiff and has not paid to the plaintiff the amount called for under said certificate of membership, then the court instructs you that your verdict should be for the plaintiff, unless the material allegations of some one of the defendant's answers has proved by a preponderance of the evidence the material allegations of some one of its answers. Even if the defendant has proved by a preponderance of the evidence the material allegations of some one of its said answers, your verdict should be for the plaintiff, if you find, from the evidence, that the material allegations of her reply thereto has been proved by a preponderance of the evidence.

W. D. Headrick, of Indianapolis, E. V. Harris, of Ft. Wayne, Graham & Walters, of Decatur, Snouffer & Sherrod, of Ft. Wayne, and Truman Plantz, of Warsaw, Ill., for appellant.

R. C. Parrish, Henry G. Hogan, and Guy Colerick, all of Ft. Wayne, for appellee.

NICHOLS, P. J.

This action by the appellee is based upon a benefit certificate in the sum of $2,000 issued by appellant to the husband of appellee in 1907. Appellant answered in four paragraphs; the first being a general denial. The second alleged breach of warranty in that the insured had misstated his age as under 45 years, while appellant claimed he was older, and that a by-law prevented one over 45 years of age from becoming a member. The third paragraph alleged misstatement of the insured that he was in sound health in May, 1917, when he was reinstated as a member; it being alleged therein that the insured had been suspended on the 1st day of May for nonpayment of the April, 1917, dues or assessments, and that a by-law required that one being reinstated must be in sound health at the time of reinstatement. In both of said second and third paragraphs of answer it is alleged that the appellant, upon learning of said alleged breaches of warranty, rescinded the contract after the death of the decedent, and tendered the amount of premiums paid under said contract to appellee before the institution of her action. The fourth paragraph of answer alleges tender and that the same was made good by bringing the money into court.

To these three special paragraphs of answer appellee filed special paragraphs of reply, setting up, in substance, that there was no misstatement of age, that there was no unsoundness of health, and that, in any event, the appellant had estopped itself from rescinding the contract and had waived any alleged breaches of warranty.

The cause was tried by a jury, which returned a general verdict in favor of appellee and answered the special interrogatories submitted by the court at the request of appellant. Appellant moved the court for judgment on the answers to the interrogatories, notwithstanding the general verdict, which motion was overruled. A motion for a new trial filed by appellant was overruled, and a judgment rendered for appellee.

The errors assigned, which have been presented to this court for its consideration, are hereinafter discussed in their order.

Appellant concedes that the answers to interrogatories do not show that appellee's decedent was over 45 years of age at the time of his application for a certificate of insurance, but it contends with much force that the answers do show that the deceased was in ill health at the time that he made application for reinstatement and at the time of his reinstatement, and that the general society did not know of the fact of such ill health until after his death, and that upon receiving the information it refused to pay. But appellee contends, with equal plausibility, that the answers to interrogatories do not show that her decedent was in ill health at the time of the reinstatement.

[1] Where answers to interrogatories are uncertain, doubtful, or obscure, they must be resolved most strongly against the party seeking the judgment thereon, and under such conditions, the general verdict must prevail. Smith v. Michigan, etc., R. R. Co., 35 Ind. App. 188, 73 N. E. 928;Welker v. Appleman, 44 Ind. App. 699, 90 N. E. 35.

[2][3] The answers state that appellant did not know at the time of the reinstatement that the insured was then in ill health, but this finding cannot prevail against another that the local society did know of the insured's ill health. It is well established that an officer of a local camp or lodge of a benefit society, who is...