The Germania Life Insurance Company of New York v. Lunkenheimer

• Decision Date: 19 March 1891
• Docket Number: 14,594
• Citation: 26 N.E. 1082,127 Ind. 536
• Parties: The Germania Life Insurance Company of New York v. Lunkenheimer
• Court: Indiana Supreme Court

26 N.E. 1082

127 Ind. 536

The Germania Life Insurance Company of New York v. Lunkenheimer

No. 14,594

Supreme Court of Indiana

March 19, 1891

From the Warrick Circuit Court.

Judgment is affirmed with costs.

G Palmer, for appellant.

C Staser, A. Gilchrist and C. A. De Bruler, for appellee.

OPINION

McBride, J.

This was an action by the appellee against the appellant to recover on a life insurance policy for $ 5,000 issued by appellant on the life of appellee's husband, Frederick Lunkenheimer.

The policy contained the following clause:

"This policy is issued, and the same is accepted by the said assured, upon the following express conditions and agreements: That the same shall cease, and be null, void and of no effect; and that this company shall not be liable for the payment of the sum assured, or any part thereof, but that all premiums previously paid shall be the absolute property of the company, without any account whatever to be rendered therefor, except as hereinafter provided in the fourth condition of this policy:

"1st. If the representations made in the application for this policy, upon the faith of which this contract is made, shall be found in any respect untrue."

The application contained the following:

"It is hereby declared and agreed that all the statements and answers to the printed questions written above, which together with this declaration and agreement, constitute an application to the Germania Life Insurance Company of New York for an insurance of five thousand dollars upon the life of Frederick Lunkenheimer are offered to the said company as a consideration of the contract applied for, each of which statements and answers, whether written by his own hand or not, every person whose name is hereto subscribed adopts as his or her own, admits to be material, and warrants to be full, complete and true, and to be the only statements given to the company in reply to its inquiries, and upon which, should the insurance applied for be granted, the company's contract will be founded. And this application is submitted to the said company, with the following express covenants and agreements." * * *

"2. That if the insurance applied for be granted by the company, the policy, if accepted, will be accepted subject to all the conditions and stipulations contained in the policy, and that the entire contract contained in the said policy, and in this application, taken together, shall be construed and interpreted as a whole, and in each of its parts and obligations, according to the charter of the said company and the laws of the State of New York, the place of the contract being expressly agreed to be the principal office of the said company in the city of New York."

One of the questions which, by the application, the applicant was required to answer, was the following:

"4-c. Have you applied for an assurance or restoration of a lapsed policy with this or any other company without having led to an assurance or restoration? If so, with which companies? And for what reason did the application not lead to an assurance or restoration?"

This question was answered, "No."

The application was made on the 14th day of April, 1881, and the policy was issued on the 21st day of April, 1881.

On the -- day of August, 1880, said Lunkenheimer had applied to the AEtna Life Insurance Company of Hartford, Connecticut, for an assurance upon his life, and his application was rejected before the application was made to appellant upon which the policy in suit was issued.

The answer above quoted was, therefore, untrue, and, prima facie, appellant is not liable, as there can be no serious doubt that the question thus propounded and answered was material.

With reference to this answer the complaint contains the averment that the application, in so far as said answer is concerned, "Was not, and is not, the application of Frederick Lunkenheimer or of the plaintiff, but the same was solely the act of the defendant. Said application was entirely prepared and written by one George Bauer, who was at the time the general agent of the defendant in procuring said assurance on said Frederick Lunkenheimer's life. Said application was entirely prepared by said Bauer, and all the answers to questions therein were written by said Bauer, or under his dictation. Said Frederick Lunkenheimer at the time said application was prepared and written informed said Bauer, that he, said Frederick, had previously to that time made an application to a life insurance company for a policy upon his life, and that no policy had been issued by said company upon said application. Said Bauer was then fully informed of all matters in relation to said application to said life insurance company, and of the action of said life insurance company upon said application. Said Bauer thereupon prepared said application to defendant, as he claimed it was his duty as said agent to do, and thereupon wrote the answer to the question above set out, or caused it to be written by another agent of defendant as it appears in said application, and assured said Frederick Lunkenheimer that all questions in said application were correctly and properly answered, and that he, as the agent of the defendant, had correctly prepared said application; and thereupon said Frederiek Lunkenheimer signed said application upon the assurance of said Bauer that the same was in all things correctly made. * * * The answer in said application, to the question hereinbefore set out, was inserted in said application by said Bauer without the knowledge of said Frederick Lunkenheimer or the plaintiff, and without any collusion or fraud upon the part of either said Frederick Lunkenheimer or the plaintiff."

This presents the only controverted question in the case, appellant insisting that upon the foregoing facts there is no liability.

The question is presented,

1. By demurrer to the complaint, which the court below overruled.

2. By the action of the trial court in overruling a motion by appellant and sustaining a motion by appellee for judgment on a special verdict returned by the jury trying the cause, and

3. By the overruling by the trial court of a motion for a new trial made by appellant.

There are four assignments of error, but each assignment presents the same question, and a ruling on one determines all.

The special verdict, in so far as it affects this question finds, in substance, that the application for the insurance was taken by one George G. Bauer, who was at the time general agent for appellant for the southern half of the State of Indiana, and one Samuel I. Loewenstein, who was at that time local agent for appellant at the city of Evansville, both of whom had known the assured for at least fourteen years prior to said time; that on the 13th day of April, 1881, and also on the 14th day of said month, said Bauer personally solicited Lunkenheimer to take a policy with appellant, and that each time Lunkenheimer stated to Bauer that it was no use for him to apply for insurance upon his life, for the reason that he had before that time made application to another insurance company for insurance on his life, and that said application had been rejected; that on both of these occasions Bauer replied that "he need not bother his head about that, and that that was the company's business, and that if he passed successfully an examination by the physician appointed by the defendant, the fact that he had been previously rejected by another company would not prevent his procuring insurance with the defendant." That on the 14th day of April, 1881, and immediately after Lunkenheimer had informed Bauer of his said previous rejection, Bauer and Loewenstein, both being at the office of Lunkenheimer, together filled out the application, Loewenstein writing all the answers, and Bauer standing by him looking at each question and dictating many of the answers without referring either question or answer to Lunkenheimer, and that the question over which this controversy arises was not read to, or in any manner made known to, Lunkenheimer, but that Bauer, looking at the question in the application, told Loewenstein to write the answer, "No." That when all this was done said parties, although in the same room, were distant some fourteen feet from Lunkenheimer, who did not then or at any other time have any knowledge of the manner in which said question had been answered; that he did not read the application nor was it read to him, but by direction of Bauer he signed it in the place indicated by Bauer, who then carried...