Red Men's Fraternal Accident Association of America v. Rippey

• Decision Date: 03 April 1914
• Docket Number: 22,528
• Citation: 104 N.E. 641,181 Ind. 454
• Parties: Red Men's Fraternal Accident Association of America v. Rippey
• Court: Indiana Supreme Court

104 N.E. 641

181 Ind. 454

Red Men's Fraternal Accident Association of America v. Rippey

No. 22,528

Supreme Court of Indiana

April 3, 1914

Original Opinion of November 25, 1913, Reported at: 181 Ind 454.

OPINION

Morris, C. J.

In her petition for a rehearing, appellee claims the court erred in "holding that forfeitures were favored by the court in favor of the insurer as against the insured." The opinion is chargeable with no such criticism. What it does declare on that subject is that no question of forfeiture was involved in the issues. The death occurred within a year of the issuing of the certificate which expressly provided against liability if death ensued from tuberculosis within that time. The second paragraph of answer averred that tuberculosis was the cause of the death. It is correctly held that there never was any insurance against death by that disease within the year, and consequently appellee never had a right of action, if the death was so caused. Knights, etc., Ins. Co. v. Shoaf (1906), 166 Ind. 367, 370, 77 N.E. 738. A right must exist before it can be forfeited. To hold otherwise would involve an absurdity.

It is further alleged that "the court erred in * * * disregarding the well-settled rule that courts will not review instructions given in the case, unless the evidence is in the record." Counsel cite Weir Plow Co. v Walmsley (1887), 110 Ind. 243, 11 N.E. 232. That case declares the correct rule, viz., that in the absence of the evidence, instructions will not be reviewed if they can be held correct on "any state of the evidence which might properly have been before the jury." The original opinion is not in conflict with such rule. There could have been no evidence here, "properly" before the jury, involving the question of appellant's duty to return premiums, because there was no issue that rendered such evidence competent.

In Knights, etc., Ins. Co. v. Shoaf supra, the court, after holding that the trial court erred in overruling a demurrer to a reply, examined the evidence to see if the said error otherwise prejudicial might be held harmless. Counsel for appellee cite the above case, and reach the erroneous conclusion that it holds that in the absence of the evidence from the record that this court may not hold the erroneous ruling harmful. It is quite true that an erroneous instruction may be rendered harmless by the evidence, which would be the case here if the evidence were in the record, and showed that there was no evidence given that the decedent died of tuberculosis. But appellant was under no obligation to incorporate in its transcript a bill of...