Travelers' Ins. Co. v. Fletcher American Nat. Bank of Indianapolis, 12291.
| Decision Date | 20 February 1926 |
| Docket Number | No. 12291.,12291. |
| Citation | 150 N.E. 825,84 Ind.App. 563 |
| Parties | TRAVELERS' INS. CO. v. FLETCHER AMERICAN NAT. BANK OF INDIANAPOLIS et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Morgan Circuit Court; Albert M. Bain, Judge.
Action by the Fletcher American National Bank of Indianapolis against the Travelers' Insurance Company and others. From a judgment for plaintiff against defendant named, defendant named appeals. Affirmed.
Superseding former opinion in 148 N. E. 501.
Shirley, Whitcomb & Dowden, of Indianapolis, John C. McNutt, of Martinsville, and Ketcham, McTurnan & Higgins, of Indianapolis, for appellant.
Miller, Dailey & Thompson, of Indianapolis, for appellees.
This was an action by appellee, Fletcher American National Bank of Indianapolis, against appellant, the Travelers' Insurance Company, and the American Central Life Insurance Company and the Premier Motor Corporation, to recover on a policy of life insurance issued in the amount of $200,000 upon the life of L. Sherman Skelton, by appellant, which policy had been assigned by said Skelton to the Premier Motor Corporation and by it to said appellee, bank.
The complaint as amended was in one paragraph, and alleged that the policy of insurance sued upon was issued on June 9, 1920, to L. Sherman Skelton by appellant in the amount of $200,000; that it was assigned by Skelton to the Premier Motor Corporation and subsequently assigned to appellee bank; that L. Sherman Skelton died on January 28, 1921; that proofs of death were furnished by appellee to appellant; and that it refused to pay the amount named in the policy. Appellant filed a separate amended answer on November 16, 1921, in four paragraphs.
The first paragraph, a general denial.
The second paragraph alleged, in substance, that L. Sherman Skelton, in making his application for the policy in suit, and in answers to questions of the medical examiners of the insurance company, made false and fraudulent statements as to his physical condition, the medical treatment he had received, and the medical history of his family, with a fraudulent intent to cause appellant to issue the policy applied for, and that, by reason of said false and fraudulent statements and answers, appellant was caused to and did issue the policy; that, upon being advised of said facts, appellant notified appellee, bank, the administrators of the estate of L. Sherman Skelton, and Premier Motor Corporation, of its intention to rescind said contract and with said notice tendered the amount paid as premiums, with interest to that date.
The third paragraph alleged that said Skelton made misrepresentations and false statements in the application for insurance concerning his physical condition, and medical and surgical attention which he had received, and concerning the history of diseases in his family, which false statements and misrepresentations were material to the risk, and that by reason of said false statements and misrepresentations appellant issued the policy.
The fourth paragraph alleged, in substance, that, by reason of the untruthfulness and falsity of the answers made by L. Sherman Skelton in his application, and by reason of the fact that he was not in good health at the time he paid his first premium, by the terms of the policy said policy was not and never had been in effect. To this paragraph of answer appellee bank, filed a demurrer, which was sustained by the court, to which ruling appellant excepted.
To the second and third paragraphs of answer of appellant, appellee bank filed its reply in three paragraphs and subsequently an additional fourth paragraph.
The first paragraph was a general denial. The second paragraph alleged that false and fraudulent answers made to the medical examiner was not a valid defense by reason of certain provisions in the policy hereinafter mentioned. The third paragraph alleged that the failure of appellant to plead particular acts as a defense within a year of the date of the policy precluded it from thereafter pleading. Demurrers filed by appellant to the second and third paragraphs of reply were sustained. The fourth paragraph of reply alleged that said Skelton did not make certain representations and statements contained in the application; that certain questions in the application were not read to him by the agent of appellant; that the appellant did not read the same at the time he signed said application; and that he did not know that said representations were in said policy. Appellant's separate demurrer to this fourth paragraph of reply was overruled, to which appellant excepted. The cause went to issue on the answer of appellant in three paragraphs and on the reply of appellee bank in two paragraphs. Defendants the American Central Life Insurance Company and the Premier Motor Corporation entered general denials to the complaint.
The cause was tried by a jury, which returned a verdict in favor of appellee bank against appellant for $212,000. Appellant filed a motion for a new trial, which motion the court overruled, to which ruling appellant excepted. The court rendered judgment on the verdict for $212,000 from which judgment this appeal is prosecuted.
Appellant assigns that the court erred:
(1) In sustaining the demurrer of appellee bank, to the fourth paragraph of separate second amended answer of appellant.
(2) In overruling the demurrer of appellant to the fourth additional paragraph of partial reply of appellee bank to the second and third paragraphs of the separate second amended answer of appellant.
(3) In overruling the motion of appellant to require appellee bank separately to state, in separate paragraphs, separate causes of action jointly stated in the complaint against appellant, and appellee, American Central Life Insurance Company.
(4) In overruling appellant's motion for a new trial.
(5) In sustaining the motion of appellee bank, to suppress the deposition of Dr. W. W. Duke, taken in behalf of appellant.
The fourth paragraph of answer specifically avers, so far as it is involved in the first assignment of error, that at the time of the first partial payment, on or about May 26, 1920, and on August 28th and November 29th, of said year, the insured was not in good health, but was suffering from a primary lesion, cerebrospinal syphilis, and nephritis uremia, and other serious ailments and maladies, the exact character of which was not known to appellant, from which, or one of which, or a combination of which, he subsequently died; that appellant had no knowledge of these facts at the time it accepted the premium payable on or about May 26, 1920, and continued in ignorance of the same until after the insured's death; that, at the time of the making of each of the partial premium payments above set out, said Skelton was not in good health, but on the contrary at the time of making each of said payments said Skelton was in bad health, and was afflicted with the ailments, diseases, and maladies above mentioned. This paragraph of answer was made seventeen months after the issuance of the policy, in plain violation of the one-year incontestable clause of the policy.
But the jury, in answer to interrogatories submitted to it by the court at the request of appellant, found that the insured was in good health at the time that he signed the applicationfor insurance and at the time that the first premium or partial payments of the total amount of the first annual premium were paid upon the policy in suit.
[1] It is well established that where, as in this case, a demurrer has been sustained to a paragraph of answer, and the jury by answers to interrogatories concerning facts within the issues as made expressly finds that the substantial averments of the answer are not true, the ruling, though erroneous, is harmless. Mauzy v. Flint, 83 N. E. 757, 42 Ind. App. 386-393, and cases cited; Beasley v. Phillips, 50 N. E. 488, 20 Ind. App. 182-188, and cases cited; Ullman v. Thompson, 106 N. E. 611, 57 Ind. App. 126-135;Gilliland v. Jones, 43 N. E. 939, 144 Ind. 662, 55 Am. St. Rep. 210;Jennings v. Dark, 92 N. E. 778, 175 Ind. 338;Bowen v. Eaton, 89 N. E. 961, 46 Ind. App. 74;McKinley v. Britton, 103 N. E. 349, 55 Ind. App. 25;Vulcan Iron Works Co. v. Electro, etc., Co., 99 N. E. 429, 100 N. E. 307, 54 Ind. App. 28. We do not, therefore, need to consider this alleged error.
[2] The second error assigned questions the action of the court in overruling appellant's demurrer to the fourth additional paragraph of reply to so much of the second and third paragraphs of answer as averred that the insured made false and fraudulent representations in answer to questions contained in his application concerning (a) the history of insanity, cancer, and tuberculosis among the insured's parents, brothers, and sisters; (b) that the insured had had no bodily or mental disease, and had received no medical or surgical attention within the past five years.
It is specifically averred in these paragraphs of answer that the representations as to tuberculosis were false and fraudulent, in that the insured had a brother, whose Christian name was James, who was suffering for many years with tuberculosis, and whose death was caused by said disease. But, in answer to the interrogatories above mentioned, the jury specifically found that such brother did not die with tuberculosis, that the insured did not know when he signed the application that his said brother had tuberculosis, and that appellant was not deceived by false statements of the insured, and thereby caused to issue the policy. As stated above, the jury found by its answers to interrogatories that the insured was in good health, specifically finding that, at the time of signing the application, and at the time of making payment of the first premium, he did not have syphilis; the alleged presence and evidence of this disease being particularly relied on by appellant...
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