Penn Mutual Life Ins. Co. v. Wiler

• Decision Date: 28 January 1885
• Docket Number: 10,959
• Citation: 100 Ind. 92
• Parties: The Penn Mutual Life Insurance Company v. Wiler
• Court: Indiana Supreme Court

100 Ind. 92

The Penn Mutual Life Insurance Company v. Wiler

No. 10,959

Supreme Court of Indiana

January 28, 1885

From the Allen Superior Court.

R. S Taylor, for appellant.

W. H Coombs, R. C. Bell, S. G. Morris and J. F. McHugh, for appellee.

OPINION

Black C.

This was an action brought upon a policy of insurance on the life of Solomon Wiler, wherein the appellant promised and agreed to and with said assured, his executors, administrators and assigns, to pay the sum insured to his wife, the appellee, her executors, administrators or assigns within sixty days after due notice and proof of his death.

There was an answer of eight paragraphs, the first being a general denial. Demurrers to the fourth, sixth, seventh and eighth paragraphs were sustained.

The plaintiff replied, and a trial by jury resulted in a verdict for the plaintiff, on which judgment was rendered, a motion for a new trial having been overruled.

The appellant in argument here has objected to the complaint, on the ground that the policy made the application therefor a part of the contract, and that, therefore, the application should have been set out with the complaint. We will not take space to fully state or to discuss the question suggested by the appellee as to whether the assignment of errors presents for decision the question involved in this objection to the complaint, but we dispose of the subject by saying that it may now be regarded as an established rule in this State that in such a case the application, or a copy thereof, need not be filed with the complaint. Continental Life Ins. Co. v. Kessler, 84 Ind. 310.

In each paragraph of the answer except the first, it was alleged, in substance, that prior to the execution of the policy said Solomon Wiler executed to the defendant an application in writing and print signed by him, of which a copy was made an exhibit; that the policy was issued in pursuance of, and was based upon, said application; that it was expressly stipulated and provided in the policy and in the application, that the latter should and did constitute part of the contract of insurance, and that all the statements and declarations thereof should be regarded as warranties and material, and that if the same should be in any respect untrue, the policy should be null and void. Each of said special paragraphs alleged that the statements and declarations contained in said application were false and untrue in certain respects stated.

The provision of the policy thus referred to by the answers was as follows: "And it is also understood and agreed to be the true intent and meaning hereof, that if the application for insurance made to the said company by said Solomon Wiler, and bearing date the 1st day of November, 1879, a true copy whereof is placed on the back of this policy, and upon faith in the truth and accuracy whereof this agreement is made, which application is hereby made part of this contract, and the statements and declarations of which are to be mutually regarded as warranties and material, shall be found in any respect untrue, then, and in such case, this policy shall be null and void."

Following the questions and answers in said application were certain provisions whereby it was covenanted and agreed "that this declaration, and the above mentioned answers and proposal contained in the foregoing application, whether written by his own hand or not, every person whose name is hereto subscribed adopts as his own and warrants to be full, complete and true, and to be the only statements given to the company in reply to its inquiries which shall be the basis of the contract between the undersigned and" said company. And it was further covenanted and agreed, "that if there has been any suppression or omission of any fact by the party making this application, or if any untrue or fraudulent allegation be contained herein or in the foregoing answers and proposal, all moneys which shall have been paid on account of such insurance shall be forfeited to the said company, and the policy of insurance made on the faith of this declaration and of the above answers and proposal shall become null and void and of no effect."

The second and third paragraphs of answer alleged the making of untrue statements by the assured in said application, in answer to certain questions as to whether he had suffered from or been subject to divers physical ailments.

In the fifth paragraph, it was shown, among other things, that in said application, in answer to the question: "How many full brothers has the party had?" the assured answered, "eight;" and that under the word "living," in a column immediately after said question, he had answered "six." And it was alleged that, in truth, he had not had eight full brothers, six of whom were living.

In the fourth paragraph of answer, it was alleged, by way of showing an untrue statement in the application, "that in answer to question No. 13 of said application, which is as follows: 'Has any near relative been afflicted with or died of consumption, cancer, disease of the heart, or any scrofulous disease, apoplexy, insanity, gout or disease of the kidneys?' the said Solomon Wiler answered, 'No;' whereas, in fact, the said Solomon Wiler had near relatives who were afflicted with and died of consumption before the signing and making of said application for insurance."

It is agreed by counsel for both parties, that the demurrer to this paragraph was sustained for the reason that the pleading did not name the near relatives alleged to have been afflicted with and to have died of consumption, or state the degree of their relationship to the life insured.

We think the court below based its ruling upon a sufficient reason. Whether any particular person was a near relative within the meaning of the contract, was a question of law, and the pleading stated a conclusion of law.

Among the interrogatories and answers in the application were the following: Questions. "18. A. How long since he was attended by a physician or professionally consulted one? B. For what disease? C. Give the name and residence of the physician who attended him. D. Give the name and residence of his usual medical adviser or family physician, to whom he refers for a certificate." Answers. "A. About one year ago. B. Bad cold. C. Dr. Isaac Rosenthal, Fort Wayne, Ind. D. Dr. Isaac Rosenthal, Fort Wayne, Ind."

The sixth, seventh and eighth paragraphs of the answer related to these interrogatories and answers. The sixth paragraph, after the inducement above stated, common to all the special paragraphs, set out said questions and answers, and alleged that the insured had been attended by and had professionally consulted Dr. George T. Bruebach, a practising physician, on the 22d day of May, 1879, and on other subsequent days, for diseases other and more serious than a bad cold, to wit, for bronchial asthma and bronchial catarrh, all which consultations and attendance were within less than six months before the making of said application, which was on the 1st of November, 1879.

The seventh paragraph was like the sixth, except that it mentioned as the physicians whom the insured had professionally consulted, and by whom he had been attended, Dr. Isaac Rosenthal and three others named, and stated that the diseases for which they had treated him were asthma, bronchitis, consumption and other diseases.

The eighth paragraph, besides said inducement and said extract from the application, alleged that it was specially covenanted and agreed by said Solomon Wiler in said application, and as part of said contract of insurance, that he would and did warrant all the answers in said application contained to be full, complete and true, and that if there had been any suppression or omission of any fact in said answers, then said policy of insurance should be void and of no effect.

The provisions of the application thus referred to were the general provisions set out therein after the questions and answers.

The eighth paragraph contained averments like those of the seventh, and further alleged, that while it was true that said Dr. Isaac Rosenthal, about a year before the making of said application, attended the applicant for a bad cold, yet he, by his said answers, suppressed and omitted to state the more important and material facts that he had professionally consulted and been attended by said Dr. Isaac Rosenthal and said other physicians, for fever, asthma, bronchitis and consumption, so that said answer was not full and complete, without omission or suppression, as it was consented, agreed and warranted it should be by the terms of policy and said application. "Wherefore the defendant says that by reason of said breach of covenants and warranty in said policy and application contained, the said policy of insurance has become and is wholly null and void."

We think that there was no error in sustaining the demurrers to these answers. It is not shown that any of the statements made by the applicant were in themselves untrue.

The contract of insurance should be liberally construed, with a view to effectuate its purpose. The language of the policy, and of the interrogatories and provisions of the application, is carefully and deliberately prearranged by the insurer; in its preparation the insured has no part. Whatever there may be in the language so prepared by the insurer, which has any tendency to defeat the main purpose of the contract, should be strictly construed against the insurer. If there be any ambiguity in an interrogatory propounded to the applicant, or it be capable of more than one answer, it should be construed most strongly against the insurer, and most favorably to the insured, in whose favor all doubt should be resolved.

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