Mut. Trust & Deposit Co. v. Travelers' Protective Ass'n of America
| Decision Date | 09 April 1914 |
| Docket Number | No. 7760.,7760. |
| Citation | 57 Ind.App. 329,104 N.E. 880 |
| Court | Indiana Appellate Court |
| Parties | MUTUAL TRUST & DEPOSIT CO. v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA. |
On motion for rehearing. Rehearing granted, and former opinion overruled, and judgment reversed.
For former opinion, see 100 N. E. 451.
This is a suit on a benefit certificate issued by appellee to Charles W. Martin, in which, in case of death from accident within the provisions thereof, appellee agreed to pay the beneficiary thereof the sum of $5,000. Carl F. Martin was the minor son, and, by reason of the death of his mother prior to that of his said father, became the sole beneficiary of said Charles W. Martin. The issues were joined upon one paragraph of amended complaint, and a general denial filed thereto by appellee. The cause was tried by a jury, and a verdict rendered for appellant. Upon the answers to interrogatories returned by the jury, the court rendered judgment for appellee.
The errors assigned are: (1) Sustaining appellee's motion to strike out the additional fourth paragraph of appellant's complaint. (2) The error of the court in rendering judgment for appellee against appellant on the answers to the interrogatories notwithstanding the general verdict.
The fourth paragraph was stricken out on the ground that all the material averments contained therein could be proven under the allegations of the amended first paragraph of the complaint.
It is insisted by appellant that there are vital differences between the facts averred in the amended first paragraph of the complaint and the fourth paragraph of the complaint stricken from the record. The difference pointed out in the paragraphs of complaint as contended by appellant is not material.
In the first amended paragraph it was alleged: “That said Carl F. Martin and this plaintiff have also each duly performed all the conditions thereof on their part to be performed; that on the 16th day of January, 1909, and within the time prescribed by the constitution, by-laws, and rules of said defendant order, said plaintiff and the said Carl F. Martin duly notified said defendant of the death of said Charles W. Martin, and made to said defendant, as required by its said constitution, by-laws, and rules, due proof of the death of said decedent, and demanded of it the payment of the amount due on the said certificate and policy; that said defendant then and there denied and still denies all liability on said certificate and policy, and refused and still refuses to pay the same, or any part thereof.”
In the fourth paragraph the manner and form in which the proofs were made is specifically set out, with this additional allegation: “Plaintiff further says that said notices and proofs of the death of said Martin were received by said defendant at its principal office in the city of St. Louis; *** that said defendant accepted said proofs, and raised no objection whatever to the contents thereof, and demanded no further proofs at any time thereafter; that said defendant retained said proofs, notices, and affidavits until the - day of March, 1909, *** at which time the said defendant rejected said proofs, and refused and declined to pay said claim, or any part thereof; *** that the said agent of said defendant, during the month of February, 1909, after having ascertained the facts and circumstances of the death of said Martin for and on behalf of defendant, thereupon denied the liability of said defendant on account of said benefit certificate for the reason as assigned by him that said Martin had committed suicide.”
Each of said paragraphs avers that the insured died on the 18th day of December, 1908, and by exhibit the constitution and by-laws of appellee are made part of each of said paragraphs. Section 7 of article 9 of the constitution provides that proofs of death must be made within 60 days after death occurs.
[1] The paragraph stricken out avers that the proofs were rejected in March, 1909, which must have been more than 60 days after the death of the insured. This being the case, the fourth paragraph of the complaint does not state facts sufficient to show a waiver of proofs within the time allowed for making proof of death, and without some affirmative act approving the proofs submitted, or expressly waiving proof, a rejection of the proofs tendered after the expiration of the time allowed for making the same is not of itself sufficient to show a waiver of the proofs on the part of the company, though an absolute denial of liability on other grounds within the time allowed for making proofs has been held to constitute a waiver of proofs. Ætna Life Ins. Co. v. Fitzgerald, 165 Ind. 317, 323, 75 N. E. 262, 1 L. R. A. (N. S.) 422, 112 Am. St. Rep. 232, 6 Ann. Cas. 551;Fidelity & Casualty Co. v. Sanders, 32 Ind. App. 448, 454, 70 N. E. 167;Germania Fire Ins. Co. v. Pitcher, 160 Ind 392, 398-402, 64 N. E. 921, 66 N. E. 1003.
The paragraph was good for the same reasons that the amended paragraph was sufficient, viz.: The averment of compliance with the provisions as to proof of death and all other conditions necessary to a recovery.
[2] It is not controverted that, if the material facts averred in the fourth paragraph of the complaint could be proven under the averments of the amended paragraph, no error was committed in striking said fourth paragraph from the files. Brown v. College Corner, etc., Road Co., 56 Ind. 110;Faylor v. Brice, 7 Ind. App. 551, 34 N. E. 833;Levi v. Drudge, 139 Ind. 458, 39 N. E. 45. As this court views the matter, the paragraphs are substantially alike, and every material charge contained in the fourth paragraph can be proven under the allegations of the amended first paragraph.
[3] The claim was not rejected upon the ground that the proofs were in any manner deficient. That question was therefore waived, and was not at issue. Germania Fire Ins. Co. v. Pitcher, 160 Ind. 392, 64 N. E. 921, 66 N. E. 167; May, Ins. §§ 468, 469; Little v. Phœnix Ins. Co., 123 Mass. 380, 25 Am. Rep. 96;Graves v. Washington, etc., Ins. Co., 12 Allen (Mass.) 391;Pennsylvania, etc., Ins. Co. v. Kittle, 39 Mich. 51.
The next error assigned and discussed by both appellant and appellee is that the court erred in sustaining appellee's motion for judgment on the answers to the interrogatories notwithstanding the general verdict,
The policy contains the following provisions: “The member hereby agrees that the following rules shall be observed: That the Travelers' Protective Association of America shall not be liable *** in case of *** injuries of which there is no visible mark upon the body (the body itself not being deemed such a mark in case of death).”
The interrogatories and the answers thereto are as follows:
[4] The rule is firmly established that, in passing on a motion for a judgment on the answers to the interrogatories notwithstanding the general verdict, the court can only consider the issues made by the pleadings, the general verdict, the interrogatories, and the answers thereto.
Questions relating to the instructions tendered, given, or refused, or to evidence actually given or excluded, cannot be considered; but the question will be determined in the light of any evidence that might properly have been received under the issues.
[5] Every reasonable presumption is indulged in favor of the general verdict, and, under the foregoing rule, the answers will not be held to be in irreconcilable conflict with the general verdict, if they may be harmonized and made consistent with it by any evidence possible under the issues.
[6] If the answers are inconsistent or contradictory, they nullify each other, and do not control or in any way affect the general verdict. C., C., C. & St. L. v. Federle, 50 Ind. App. 152, 98 N. E. 123;Inland Steel Co. v. Smith, 168 Ind. 245, 249, 80 N. E. 538;Bemis Indianapolis Bag Co. v. Krentler, 167 Ind. 653, 655, 79 N. E. 974.
[7][8] The case was tried on a single paragraph of complaint and an answer of general denial. In passing on the motion for a judgment on the answers of the jury to the interrogatories, we cannot go outside the issues made by the general denial.
Appellant contends that under the issues formed the question of visible marks is not presented. The defense depends on the provision of the policy which excepts from the liability of appellee “injuries of which there is no visible mark upon the body.”
If the loss is within a warranty or an exception shown by the policy , it is a matter of defense, which must be pleaded affirmatively by the defendant, and is not available as a defense under the general denial, unless the complaint contains special averments which put such matters in issue. Modern Woodmen v. Noyes, 158 Ind. 503, 507, 64 N. E. 21;Phœnix Ins. Co. v. Pickel, 119 Ind. 155, 158, 21 N. E. 546, 12 Am. St. Rep. 393;Louisville Underwriters v. Durland, 123 Ind. 544, 547, 24 N. E. 221, 7 L. R. A. 399;U. S. Casualty Co. v. Hanson, 20 Colo. App. 393, 79 Pac. 176.
In this case the complaint avers that the insured came to his death as a result of an accident which produced on the body visible marks other than the body itself. While the averment in regard to visible marks on the body was not essential to a good complaint, the appellant having specially pleaded the fact to show that the company was not saved from liability by the exception, it cannot now be heard to say that the question of visible marks upon the body was...
To continue reading
Request your trial
-
Mutual Trust And Deposit Co. v. Travelers Protective Association
... ... F. Martin, against the Travelers Protective Association of ... America. From a judgment for defendant, the plaintiff ... ... Reversed ... 338] the insured is ... immaterial. Bernays v. United States Mut. Acc ... Assn. (1891), 45 F. 455, 457; 4 Cooley, Briefs on Ins ... 3185. In Fuller, Accident ... ...