Reserve Loan Life Ins. Co. v. Leising

• Court: Indiana Appellate Court
• Writing for the Court: REMY
• Citation: Reserve Loan Life Ins. Co. v. Leising , 78 Ind.App. 197, 134 N.E. 667 (Ind. App. 1922)
• Decision Date: 15 March 1922
• Docket Number: No. 10987.,10987.
• Parties: RESERVE LOAN LIFE INS. CO. v. LEISING.

78 Ind.App. 197

134 N.E. 667

RESERVE LOAN LIFE INS. CO.

v.LEISING.

No. 10987.^*

Appellate Court of Indiana, Division No. 1.

March 15, 1922.

Appeal from Circuit Court, Decatur County; John W. Craig, Judge.

Action by Bernard Henry Leising against the Reserve Loan Life Insurance Company. From judgment for plaintiff and an order overruling motion for new trial, defendant appeals. Affirmed.Guilford A. Deitch and Frank G. West, both of Indianapolis, and Wickens, Osborn & Hamilton, of Greensburg, for appellant.

A. B. Wycoff, of Batesville, and Tremain & Turner, of Greensburg, for appellee.

REMY, J.

Action by appellee against appellant on a policy of insurance on the life of appellee's son, who died while in the military service of the United States. The complaint is in one paragraph, with the usual averments in cases of this character, except that it contains an allegation that, after the death of the insured, the possession of the policy was surrendered to appellant's agent, who at the time stated that he wanted the policy for the purpose of making proofs of death; that the policy was later returned to appellee, but that, while out of appellee's possession, and without appellee's knowledge or consent, the policy was altered by striking therefrom the words, “and no permit or extra premium will be required for military or naval service in time of war or in time of peace,” and by attaching to the policy a rider containing the provision that death of the insured while engaged, without the company's permission, in military service in time of war “shall render the company liable for only the reserve maintained” on the policy. In addition to a general denial, appellant filed a second paragraph of answer, in which it is averred that the insured met his death while engaged in military service in time of war, by reason of which the company was rendered “liable only for the reserve on the policy” in the sum of $35, for which amount, with interest, appellant offered to confess judgment.

A trial resulted in a verdict for appellee for the full amount of the policy. Appellant has assigned as error the action of the court in overruling its motion for a new trial.

At the trial, the only controversy related to the issue as to whether or not the alterations of the policy were made before the policy was issued or after the death of the insured.

[1][2] In his opening statement to the jury, counsel for appellant said that the evidence would show that his company began issuing policies containing the military rider on May 1, 1916, before the policy in suit was issued the 19th day of the following July. During the progress of the trial, and while appellee was offering his evidence in chief, one Hartman, a witness for appellee, identified a policy of life insurance which he stated had been issued to him by appellant on June 24, 1916, which policy was then offered in evidence by appellee. To this evidence objection was made by appellant's attorney on the ground that it did “not in any way tend to prove or disclose any fact as to any change in the policy contract sued on.” The court overruled the objection, and in admitting the evidence made the following statement:

“For the purpose of consideration by the jury in determining whether or not the policy in suit had the military rider attached at the time it was issued, and in view of the statement of counsel for the defendant that the company had begun issuing such riders some time before the date shown on the Hartman policy, this exhibit will be permitted to go to the jury.”

It is urged by appellant that this action of the court, which was assigned as one of the grounds for a new...