Prudential Ins. Co. of America v. Sellers

• Decision Date: 17 October 1913
• Docket Number: No. 8,076.,8,076.
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. SELLERS.
• Court: Indiana Appellate Court

54 Ind.App. 326

102 N.E. 894

PRUDENTIAL INS. CO. OF AMERICA

v.SELLERS.

No. 8,076.

Appellate Court of Indiana, Division No. 1.

Oct. 17, 1913.

Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by Daniel S. Sellers against the Prudential Insurance Company of America. From a judgment for plaintiff, the defendant appeals. Affirmed.Whitcomb, Dowden & Stout, of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

HOTTEL, P. J.

This is an appeal from a judgment for appellee, in an action brought by him to recover on a life insurance policy by the terms of which appellant insured “the joint life” of appellee and his wife, Nellie Sellers, for $500, “payable to the survivor of Daniel S. Sellers and Nellie Sellers beneficiary.” The complaint is in the usual form, and contains a copy of the policy, together with a copy of the application indorsed thereon as an exhibit.

The provisions and conditions of such policy and the application therefor important and necessary to an understanding of the questions presented by the appeal are:

Provisions of policy: “In consideration of the application for this policy, which is hereby made part of this contract, a copy of which application is indorsed hereon, and of the payment, in the manner specified, of the premium herein stated, hereby insures the joint life of the persons herein designated as the insured for the amount named herein, payable as specified, subject to the privileges and provisions on the second and third pages hereof, which are hereby made part of this contract. *** Entire Contract Contained in This Policy.-This policy (together with the copy of the application indorsed hereon) contains the entire contract between the parties hereto, and all statements made by the insured shall in the absence of fraud be deemed representations and not warranties, and no such statement shall avoid the policy or be used as a defense to a claim thereunder unless it be contained in the application for the policy and unless a copy of such application be indorsed upon or attached to the policy when issued.”

Provision of application: “I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, as well as the statements and answers made or to be made to the company's medical examiner, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.”

Declaration of applicant at close of medical examination: “*** I hereby declare that all the statements and answers to above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for. Dated this 22 day of Feb., 1910. Nellie Sellers. [Applicant's Signature.]”

Among the questions propounded by the medical examiner and answers made thereto by decedent is the following: “*** Have you been attended by a physician during the past three years? On what dates and for what complaints? No.”

The appellant filed an answer in six paragraphs, five of which were affirmative, and set out the several provisions of the policy and application above indicated, and each counted upon a separate and distinct representation of decedent, alleged to be false and fraudulent. We have indicated above the question and the answer in the application upon which the third paragraph of such answer was predicated. This question and answer is the one on which appellant specially relies for a reversal, and it, with the complaint, will be sufficient to present all the questions involved in the appeal. There was a reply in denial to the affirmative answers. A trial by jury resulted in a verdict for appellee. A motion for new trial was overruled and exceptions properly saved.

[1] All errors assigned except that on the motion for new trial are expressly waived. Of the grounds for new trial appellant urges only 4, 5, 6, 7, 8, 32, 33, and 34. The fourth ground calls in question instruction No. 4 given by the court on its own motion. It is insisted that this instruction purports to set out the facts which, if proven by appellee, would entitle him to recover, and that it fails to require the jury to find that, at the time the policy was delivered and the first premium paid thereon, the health of the decedent was in the same condition as described in the application. Among the other facts necessary to be found to authorize a verdict for appellee under this instruction was the following, viz., “that plaintiff was entitled to receive of and from the defendant the sum of $500.” This condition in the instruction on which a verdict for the plaintiff was made to depend was in the nature of a conclusion to be reached by the jury rather than a fact to be found by it, yet such a conclusion could be reached only in the event that the jury found not only the other requisite facts enumerated in the instruction, but all the facts essential to a recovery, including that which appellant insists was omitted. So that the instruction, when considered in its entirety and in connection with other instructions given in the case, was not subject to an interpretation harmful to appellant.

Other instructions, given by the court on its own motion and repeated at appellant's request, told the jury in express terms that if it found that Nellie Sellers was not in good health at the time the policy was delivered and the first premium paid, or if they found that, at such time, she “ was afflicted with tubercular trouble of the lungs,” that appellee could not recover, but that the verdict in such case should be for appellant, and that it made “ no difference whether Nellie Sellers knew that she had tuberculosis or consumption at that time or not.” (Our italics.)

[2][3] Instructions 5, 6, 7, and 8 are addressed to the issue presented, respectively, by the second, third, fourth, and fifth paragraphs of answer, and each, respectively, undertakes to enumerate the facts necessary to appellant's recovery under the particular answer to which such instruction is addressed, and each begins as follows: “If you should find by a fair preponderance of the evidence that the application made by said Nellie Sellers for insurance was, by the policy of insurance, made part thereof.” It is contended by appellant in effect that by this provision, found in each of said...