Ætna Ins. Co. v. Deming

• Decision Date: 01 April 1890
• Citation: 24 N.E. 86,123 Ind. 384
• Parties: Ætna Ins. Co. v. Deming.
• Court: Indiana Supreme Court

123 Ind. 384

24 N.E. 86

Ætna Ins. Co.

v.Deming.¹

Supreme Court of Indiana.

April 1, 1890.

Appeal from circuit court, Putnam county; Silas D. Coffey, Judge.

Action by Henry Deming, as administrator of Arthur Deming, against Ætna Insurance Company. There was a verdict and judgment for plaintiff, and defendant appeals.

George A. Knight and A. W. Knight, for appellant. C. F. McNutt, Williamson & Daggy, E. N. Rinehart, and Davis & Davis, for appellee.

Berkshire, J.

This was an action brought on a life insurance policy. There was a jury trial, and a verdict returned in favor of the appellee for $10,700. A motion was filed for a new trial, which the court overruled, and to the ruling of the court a proper exception was reserved. Previous to the trial the appellant filed a motion to strike out a part of the second paragraph of the complaint, which motion the court overruled, to which ruling of the court the appellant reserved an exception, and following the motion separate demurrers were filed to the two paragraphs of the complaint, and, the court overruling the demurrers, exceptions were reserved. The errors assigned call in question the said several rulings of the court. We may say here, as well as at any other time, in view of the many decisions of this court directly upon the question, that there is no available error arising out of the ruling of the court in overruling the said motion to strike out parts of the said second paragraph of complaint. But further on we will state another reason why the said ruling of the court gave rise to no available error. In their brief counsel for the appellant do not contest the sufficiency of the paragraphs of complaint, and therefore waive all question as to their sufficiency. Hence the only alleged error left for our consideration is as to the correctness of the court's ruling in overruling the motion for a new trial.

The motion alleges several causes for a new trial, but, without calling special attention to each, we will consider the different questions discussed by counsel as they arise in the record. One of the questions to which counsel for the appellant devotes much time is as to the alleged matter brought into the second paragraph of the complaint, to which the motion to strike out, already referred to, related. As we understand the record, the jury found against the appellee as to all of that part of the alleged cause of action, and simply returned a verdict for the face value of the policy, with interest. This being so, if it is conceded that the court was in error in its rulings upon that branch of the case, the error is not available in this court; but we do not wish to be understood as intimating an opinion that the court was in error. We have not considered the questions thus arising, for the reason stated. If the appellant was put to costs in consequence of the issue presented as to the said portion of the second paragraph of the complaint, and the issue joined thereon, it was entitled to recover costs; and, had a proper motion been made, the court would no doubt have adjudged such costs to the appellee. It was the duty of the court to construe the policy, and state its construction thereof to the jury; and, in the light of the construction given to the instruction by the court, it was the duty of the jury to consider and determine the facts as presented by the issues tendered by the parties. This is conceded by the appellant's counsel, and they refer to Martindale v. Parsons, 98 Ind. 174. The clause in the policy on which rests the affirmative answers filed by the appellant is as follows: “Or in case he shall become so far intemperate as to impair his health seriously and permanently, or induce delirium tremens.” It is well-settled law that all conditions in policies of insurance which, when violated, work a forfeiture as against the assured, are to be construed liberally in favor of the assured, and strictly against the insurer. Wood, Ins. § 67, p. 157; Mutual Assur. Soc. v. Insurance Co., 84 Va. 116, 4 S. E. Rep. 178, 10 Amer. St. Rep. 819, and note; Havens v. Insurance Co., 111 Ind. 90, 12 N. E. Rep. 137; Rogers v. Insurance Co., 23 N. E. Rep. 498; Insurance Co. v. Golden, 23 N. E. Rep. 503. The condition which we have quoted was a condition belonging to the class named; and, asserting that the condition had been broken, the appellant sought an acquittance from liability on account of the policy. Under this condition in the policy it was not enough to work a forfeiture that the assured was a person who indulged in the use of intoxicating liquors, not even to the extent of impairing his health seriously, unless the impairment was permanent. A person's health may be seriously impaired, and yet only temporarily so; but under the said condition in the policy not only must there have been a serious impairment, but it must have been permanently so. The condition is double in its character; that is to say, one of two physical conditions brought about by intemperate habits would have worked a forfeiture under the policy,-a serious and permanent impairment of health, or delirium tremens. In either case all rights under the policy would have been forfeited, but nothing short of the one or the other could have brought about that result.

The appellant requested the court to give an instruction to the effect that, if the assured became so far intemperate from the excessive or protracted use of intoxicating liquors, drinks, or beverages as to impair his health seriously and permanently, or to induce delirium tremens, the appellee could not recover, and this instruction the court gave. The appellant also asked the court to give an instruction to the effect that, if the assured used spirituous liquors to such an extent as to produce frequent intoxication, he was intemperate within the meaning of the policy; and if such intemperance impaired his health seriously and permanently, or induced delirium tremens, this avoided the policy. This instruction the court refused. We do not regard the refusal to give this instruction as error. If for no other reason, it does not materially differ from the instruction which the court gave. The only difference is in the words employed. But the instructions which the court prepared and gave as to the construction to be placed upon the said condition in the policy were clear, concise, and fair to the appellant, and accord with the construction which we have placed upon it.

We do not care to set out and discuss the instructions given by the court, except the one numbered 9 1/2, for the reason that...