Modern Woodmen of America v. Hall

• Decision Date: 28 April 1921
• Docket Number: 23,960
• Citation: 130 N.E. 849,190 Ind. 493
• Parties: Modern Woodmen of America v. Hall
• Court: Indiana Supreme Court

130 N.E. 849

190 Ind. 493

Modern Woodmen of America v. Hall

No. 23,960

Supreme Court of Indiana

April 28, 1921

From Perry Circuit Court; William Ridley, Judge.

Action by Mary J. Hall against the Modern Woodmen of America. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394, cl. 2, Burns 1914, Acts 1901 p. 565.)

Affirmed.

Edmund L. Craig, William Waldschmidt and Truman Plantz, for appellant.

Hottel & Patrick, John W. Ewing and Cody & Corbin, for appellee.

Myers J. Townsend, J., absent.

OPINION

Myers, J.--

Appellee, as beneficiary in a matured benefit certificate issued by appellant to her son, Casper Hall, brought this action to recover the amount due thereon. A complaint containing the usual allegations in such cases, answer in three paragraphs and a reply in denial formed the issues submitted to a jury for trial which resulted in a general verdict in favor of appellee. The pleadings are not questioned. The jury with their general verdict returned answers to a number of interrogatories. Motions by appellant for judgment on the answers to interrogatories and for a new trial were each overruled and judgment was rendered on the general verdict. Appellant predicates error on each of the above rulings.

Appellants resisted payment upon the sole ground that the by-laws application, and certificate constituted the contract, and that the insured made false answers to certain questions in the application which, although material or immaterial to the risk, nevertheless were warranties, the untruthfulness of which rendered the certificate voidable.

Our attention is first directed to appellant's motion for judgment in its favor on the answers of the jury to interrogatories. The questions and answers in the application of the insured averred by appellant in its third paragraph of answer to be false, are as follows: "14a. Have you, within the last seven years, been treated by or consulted any person, physician or physicians in regard to personal ailment? Yes. 14b. If so, give dates, ailments, duration of attacks and name and address of each and all persons or physicians consulted or by whom treated. April 16, '06, April 26, '06, Pleurisy, 3 days, Dr. W. L. Parr, Derby, Ind. 14c. Was recovery complete? Yes. 16a. Have you ever had any local disease, personal injury, or serious illness? No. 16b. If so, explain fully, giving dates. * * * 16c. Was recovery complete? * * * 17. Are you now of sound body, mind, and health, and free from disease or injury, of good moral character and exemplary habits? Yes. 33a. Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms: Consumption. No. Habitual Coughing. No. Lungs. No. Spitting Blood or other Hemorrhages? No. Or any other disease? No."

Following the thirty-five questions of the application is the statement: "I have verified each of the foregoing answers * * * and declare and warrant that they are full, complete, and literally true, and I agree that the exact, literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers." Then follows a statement agreeing that the answers shall form the basis of and the consideration for the contract applied for, and which may be issued upon this application, and that the certificate and application may be construed together, and that if any answer or statement in the application is not literally true, or if applicant shall fail to comply with the by-laws, the benefit certificate shall be void. The application bears date of April 2, 1910, and the benefit certificate was executed May 21, 1910.

The substance of the answers to interrogatories relied on by appellant to avoid the policy follows: At the time of making the application and issuing the benefit certificate herein, appellant was a fraternal beneficiary society duly admitted to do business in Indiana; that the insured in his application to appellant stated that he had consulted and had been treated by a physician for a personal ailment within seven years, and gave dates, ailments, duration of attacks, and the name of the physician, Dr. W. L. Parr, consulted; and answered "No" to the question "Have you ever had any local disease, personal injury or serious illness?"; that the various questions included in the general question 33a, in the insured's application, were answered "No"; that the insured consulted Dr. John H. Lee in May, 1904, but there is no evidence that he treated him for hemorrhages. The insured did not have hemorrhages, disease of the lungs, or spitting of blood in May, 1904, nor had he had any of these ailments or symptoms thereof prior to the date of his application.

In answering the question thus presented for decision, we look to the complaint, the third paragraph of answer, the general verdict, the interrogatories and answers of the jury thereto. The general verdict amounted to a finding of every material fact essential to a recovery in favor of appellee. It has the benefit of every reasonable intendment, while the answers of the jury are to be strictly construed against the moving party. If, by applying these principles, irreconcilable conflict between such answers and the general verdict is not shown, both may stand and judgment on the general verdict should be sustained. Lavene v. Friedrichs (1917), 186 Ind. 333, 343, 115 N.E. 324, 116 N.E. 421; Chicago, etc., R. Co. v. Fretz (1909), 173 Ind. 519, 528, 90 N.E. 76; Inland Steel Co. v. Smith (1907), 168 Ind. 245, 80 N.E. 538; Pittsburgh, etc., R. Co. v. Lightheiser (1906), 168 Ind. 438, 78 N.E. 1033; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N.E. 235; Chicago, etc., R. Co. v. Schenkel (1914), 57 Ind.App. 175, 104 N.E. 50; Harker v. Gruhl (1916), 62 Ind.App. 177, 111 N.E. 457; Union Traction Co. v. Barnett (1903), 31 Ind.App. 467, 67 N.E. 205.

In the paragraph of answer mentioned, it is averred "that the answers to said questions were false and untrue and that within seven years immediately preceding said application for membership the said Casper Hall had been treated by and consulted with a physician, to-wit: Dr. John H. Lee, in regard to hemorrhages, spitting blood and tuberculosis; that at the date of said application he was not of sound body, mind and health nor free from disease and injury and that previous to the making of said application he had had local diseases and serious illness, and that he had had previous to the date of said membership application diseases of the lungs and air passages and had had consumption and habitual coughing and hemorrhages and spitting blood and other diseases and symptoms of each." As to all of these ailments and infirmities of body and mind, the answers of the jury squarely contradict the averments of appellant's answer, so that our further inquiry must be limited to the effect of the insured's failure to state that in May, 1904, he had consulted Dr. Lee. In this respect, if at all, the warranty is breached.

The contract before us is unilateral in character and if necessary will be strictly construed to prevent a forfeiture, nor will it be construed to create a warranty if the language used will admit of some other interpretation more favorable to the insured. Iowa Life Ins. Co. v. Haughton (1909), 46 Ind.App. 467, 87 N.E. 702; Metropolitan Life Ins. Co. v. Johnson (1911), 49 Ind.App. 233, 242, 94 N.E. 785; Smith v. Bankers Life Assn. (1905), 123 Ill.App. 392, 396.

There was no interrogatory submitted calling for the purpose for which the insured consulted the doctor, nor does such purpose appear from any of the answers. In this case appellant was the moving party, and it must succeed or fail in its contention upon the answers to interrogatories unaided by any intendment; and as the general verdict draws to its support all inferences which may be deduced from any evidence admissible under the issues, we must assume that such consultation was with reference to some temporary indisposition.

In Modern Woodmen, etc. v. Miles (1912), 178 Ind. 105, 97 N.E. 1009, this appellant resisted payment of a matured certificate on practically the same grounds as urged in the instant case. In that case it appeared that the insured, in answer to question 14 of his application, had failed to state that within four months prior thereto he had received from a physician headache tablets. Questions 16 and 14, with answers thereto, were considered and this court speaking to the question "Was he treated for any 'ailment,' within the meaning of that word as used in question fourteen?" said: "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 years, for which he received no treatment, and concerning which he had consulted no one. Question fourteen covers only illness for which treatment was received or consultation had. On appellant's theory, illness not serious, untreated, and about which no consultation was sought, was not within the scope of questions fourteen and sixteen. It would appear that if question fourteen had contemplated treatment of mere functional disorders, question sixteen would not have been limited to seeking information relating to serious illness only. But still more important considerations are presented by appellant's contention. The question calls for information covering a period of seven years. It was framed for practical use, to elicit substantial information from people of average memory. Yet appellant was bound to know that it would be impossible for a person of average memory to give the dates and particulars of each treatment for, or consultation...