Mut. Trust & Deposit Co. v. Travelers' Protective Ass'n of America

• Court: Court of Appeals of Indiana
• Citation: 100 N.E. 451
• Decision Date: 21 January 1913
• Docket Number: No. 7,760.,7,760.
• Parties: MUTUAL TRUST & DEPOSIT CO. v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

100 N.E. 451

MUTUAL TRUST & DEPOSIT CO.

v.TRAVELERS' PROTECTIVE ASS'N OF AMERICA.

No. 7,760.¹

Appellate Court of Indiana, Division No. 1.

Jan. 21, 1913.

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by the Mutual Trust & Deposit Company, guardian, etc., against the Travelers' Protective Association of America. From a judgment for defendant, plaintiff appeals. Affirmed.George H. Hester, of New Albany, and Stannard & Howard, of Jeffersonville, for appellant. John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, and Charles L. Jewett and Henry E. Jewett, both of New Albany, for appellee.

SHEA, J.

This was an action upon 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 the sum of $5,000. Carl F. Martin was the minor son and 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 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 non obstante veredicto.

[1] 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 complaint, stricken from the record. The difference pointed out in the paragraphs of complaint as contended by appellant, is not essential.

In the first amended paragraph it was alleged “that said Carl F. Martin and this plaintiff have also each duly performed all of 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 or 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 said 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.”

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 first paragraph no error was committed in striking said fourth paragraph from the files. Brown et al. v. College Corner, etc., Road Co., 56 Ind. 110;Faylor v. Brice, 7 Ind. App. 551, 34 N. E. 833;Levi et al. v. Drudge et al., 139 Ind. 458, 39 N. E. 45.

As this court views the matter, every material charge in the fourth paragraph can be proven under the allegations of the amended first paragraph. 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. 1003; May, Insurance, §§ 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;Farmers', etc., Ins. Co. v. Taylor, 73 Pa. 342; Farmers', etc., Ins. Co. v. Meckes, 10 Wkly. Notes Cas. (Pa.) 306; Commercial Union Assur. Co. v. Scammon (Ill.) 12 N. E. 324;Farmers', etc., Ins. Co. v. Moyer, 97 Pa. 441.

[2] If, by any sort of deduction, it might be concluded that there was error in striking out the fourth paragraph of the complaint, that error was harmless, because the answers to interrogatories show that the final judgment was in no way influenced as to proofs furnished to appellee after death, as required by the policy. Levi et al. v. Drudge et al., supra; Standard, etc., Co. v. Martin, 133 Ind. 376, 33 N. E. 105.

[3] 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 non obstante veredicto. It is settled by our decisions that in passing on such a motion this court cannot look to the evidence or instructions, or anything occurring on trial, but only...