Modern Woodmen of America v. Miles

Decision Date27 March 1912
Docket Number22,082
Citation97 N.E. 1009,178 Ind. 105
PartiesModern Woodmen of America v. Miles
CourtIndiana Supreme Court

Rehearing Denied June 6, 1912.

From Superior Court of Marion County (74,503); P. W. Bartholomew Judge.

Action by Mamie D. Miles against the Modern Woodmen of America. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)


Benjamin D. Smith, Charles F. Remy and James M. Berryhill, for appellant.

Henry Warrum, for appellee.


Morris, C. J.

Suit by appellee against appellant on a benefit certificate issued by it on October 5, 1906, to appellee's husband, James H Miles, providing for the payment of $ 2,000 to appellee on the death of her husband.

The certificate was issued on an application signed by decedent, on September 27, 1906. This application contained numerous questions to be answered by the applicant, and the answers were warranted to be full, complete and literally true, and it was agreed that the exact, literal truth of each of the answers should be a condition precedent to any liability on the part of appellant.

Appellant's answer to the complaint disclaimed any liability, because, it alleged, certain answers to questions in the application were untrue.

The issues were tried by the court, which made a special finding of facts, and stated its conclusions of law thereon. Judgment was rendered in favor of appellee for the full amount of the certificate.

The only error assigned here, and not waived, is the overruling of appellant's motion for a new trial. It is averred in this motion that the decision of the trial court was not supported by sufficient evidence, and was contrary to law.

The basis of the principal ground of contention here is question number fourteen, and the applicant's answer thereto (which we italicize), as follows:

"14. (a) Have you, within the last seven years, been treated by or consulted any person, physician or physicians in regard to personal ailment? No. (b) If so, give dates, ailments, duration of attacks, and name and address of each and all persons or physicians consulted or by whom treated. (c) Was recovery complete?"

The court found specially that the applicant had not consulted, nor been treated by, a physician for any personal ailment within seven years.

The uncontradicted evidence shows that in June, 1906, in the office of Doctor Seaton, in Indianapolis, the decedent told the doctor he had the headache, and the doctor gave him a dozen antikamnia headache tablets, for which he made a charge of fifteen or twenty cents. The doctor made no examination of decedent, and asked him no questions about the headache complained of.

The doctor testified as a witness for appellant. On cross-examination he said that frequently decedent came to his office to get medicine for other members of his family, and he did not remember whether it was on one of such occasions that he complained of headache and received the tablets.

The doctor further testified that every one had headaches more or less, and anything that puts the circulation out of order will cause them.

Appellant claims that in view of the above facts, the decedent's answer to the above question relating to consultation with and treatment by a physician was false, and constituted a breach of one of the warranties of the contract.

Appellee's counsel contends there was no professional consultation nor treatment here, as reasonably contemplated by the parties to the contract; that the consultation or treatment must have been with reference to some substantial disorder, and not for a mere functional or temporary indisposition.

It is the duty of courts to ascertain the intention of the parties to a contract, and give effect to the ascertained intent. This rule applies to insurance as well as other contracts, with the qualification that in the former class, where there is doubt or ambiguity, a liberal rule obtains in favor of the insured. Supreme Council, etc., v. Grove (1911), 176 Ind. 356, 96 N.E. 159, and cases cited; Federal Life Ins. Co. v. Kerr (1910), 173 Ind. 613, 89 N.E. 398, 91 N.E. 230, and cases cited; German-American Ins. Co. v. Yeagley (1904), 163 Ind. 651, 71 N.E. 897, 2 Ann. Cas. 275.

It is not, however, the province of the court to make or alter contracts, whether those of insurance, or of other character. Ohio Farmers Ins. Co. v. Vogel (1906), 166 Ind. 239, 245, 76 N.E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. 382, 9 Ann. Cas. 91. But where, from the language of an insurance contract considered as a whole, and viewed in the light of the surrounding circumstances, the intent is doubtful, this court has long recognized a rule of construction, liberal to the insured, because the parties do not deal on an equal footing. Federal Life Ins. Co. v. Kerr, supra, page 618.

The record discloses that defendant is a fraternal beneficiary society, with many members, the certificate declared on being No. 1,308,230. It is manifest that the leading purpose of the organization is to furnish protection to persons of moderate means at the lowest possible cost. To accomplish this purpose, it follows that a greater degree of caution must necessarily be exercised in the acceptance of risks than might be required if the rates were higher, and in construing this contract the above feature is worthy of notice; but it cannot be conceded that the language of the contract evinces a purpose on the part of the insurer to set a trap for the unwary.

In construing contracts words must be given their ordinary meaning, unless a contrary purpose is shown. Webster's Dictionary defines "Ail, v. t.", as follows: "To affect with pain or uneasiness, either physical or mental; to trouble; to be the matter with; to affect in any way;--used to express some uneasiness or affection, whose cause is unknown."

Substantially the same definition is found in the Century Dictionary. In the Universal Dictionary it is said of the word "ail": "It is generally used in interrogatories in which inquiry is made as to the unknown cause of some restlessness or trouble."

The word "consult" is defined as follows: "To ask advice of; to seek the opinion of; to apply or recur to, for information or instruction." Webster's Dictionary.

To "treat" a disease or patient means "manage in the application of remedies." Webster's Dictionary.

We do not believe that the decedent "consulted" Doctor Seaton within the ordinary meaning of that word. He neither sought nor received any professional advice, information or instruction.

Was he treated for any "ailment", within the meaning of that word as used in question fourteen? The disorder complained of was headache. The cause of the uneasiness, or affection, was considered, both by the decedent and physician, as known; otherwise it must be presumed that there would have been at least some questions asked. In response to the complaint of headache, the doctor simply gave him some trade tablets. We are of the opinion that this did not constitute treatment for an ailment.

If, however, it did constitute treatment for an ailment, within the meaning of that word as used in the application, we are constrained to hold that the applicant's answer to the question, under the evidence, did not constitute a breach of warranty.

Question numbered sixteen, in the application, affords some aid in the proper construction of the contract, and is as follows: "16. (a) Have you ever had any local disease, personal injury or serious illness? (b) If so, explain fully, giving dates (c) Was recovery complete?"

It will be noted that question sixteen calls for an answer from the applicant for any serious illness that he ever had. This would include any serious illness he had in the preceding seven...

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