Travelers Ins. Co. v. Eviston
| Decision Date | 14 November 1941 |
| Docket Number | 16596. |
| Citation | 37 N.E.2d 310,110 Ind.App. 143 |
| Parties | TRAVELERS INS. CO. v. EVISTON. |
| Court | Indiana Appellate Court |
Edmund Ortmeyer and Frederick Bamberger, both of Evansville, for appellant.
French Clements, of Evansville, for appellee.
In this action, after trial by jury, the appellee recovered a judgment against the appellant for the sum of $2,998, for the death of appellee's decedent, Flora E. Shelton, which occurred on the 8th day of August, 1938, as a result of certain accidental injuries received by her on such date.
The appellant is relying upon the overruling of its motion for a new trial as reversible error. The grounds thereof upon which it relies are as follows:
1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
In addition to above grounds appellant properly specifies claimed error of the trial court in giving Instructions Nos 1 and 5 of the court's own motion, and Instructions 3, 5 6, 7 and 11, requested by the appellee, and in refusing to give Instruction No. 1, requested by the appellant.
The evidence is largely without dispute. Much of it was the result of stipulation by the parties, but from the record the following facts are deduced: On the 1st day of August, 1938 Roy Shelton and his wife, Flora E. Shelton, lived in the town of Andrews, Indiana. On such date they started on a trip to visit the son of Roy Shelton who lived at Watertown, South Dakota, and since they were going to travel on a particular train it was necessary for them to get reservations at Logansport, Indiana, and present them at the ticket office in the Union Station in Chicago, Illinois, for validation. They arrived at the ticket office in the Union Station in Chicago at about 6:15 in the morning of August 1, 1938. Roy Shelton was then approximately 81 years of age and his wife, Flora E. Shelton, was 72 years and one day of age. They went to a ticket window in such station to get their reservation but the proper agent was not there at the time. Another ticket agent, who was also an agent of appellant, requested that they come back in ten or fifteen minutes. When they did so the agent, who was also an agent of appellant, obtained instructions by telephone and made the reservations for them. He asked them about their trip and asked if they wanted to carry a policy of insurance during the same, and told them that if they were going to be gone for only ten days that he could make them special rate on a policy for such time. They agreed to take the policies and he prepared a separate policy for Roy Shelton and one for his wife, Flora E. Shelton; he told Mr. Shelton and his wife that he was making them a special price because they were taking two policies. He put the two policies in one envelope, collected for the same and handed them to Roy Shelton, who, without examination, placed them in his pocket where he carried them, without examination, until after the accident to his wife happened. This agent did not ask Roy Shelton or his wife how old they were and he said nothing about any age limitations being in the policies, but both Roy Shelton and his wife were present before the agent executed and delivered the policies so that he had full opportunity to form a conclusion from their personal appearance concerning their approximate ages.
Shelton and his wife went to Watertown, South Dakota, where Mrs. Shelton fell down a stairs on the 8th day of August, 1938, and injured herself so that she died. After her death an examination was made of the insurance policies delivered to Roy Shelton and it was discovered that they contained the following clause: "This insurance does not cover any person under 18 or over 70 years of age."
A claim was made for the amount of insurance specified in the policy issued to Flora E. Shelton, but the appellant denied liability on the ground that she was more than seventy years of age at the time the policy was issued. When the policy was issued to Flora E. Shelton, she signed a written application which was presented to her by appellant. The stub of such application contained a direction to the agent not to issue a policy to persons under eighteen or over seventy years of age and contained a blank space for the agent to insert the age of the applicant after the words "age of applicant." In this particular case the agent did not fill the blank space for "age of applicant" but filled all other blanks in the application and the stub.
After the death of Flora E. Shelton, appellee was appointed administrator of her estate and on the 25th day of October, 1938, such administrator accepted a return of a sum of $2 that was paid as premium for the policy issued to his decedent and then executed an instrument denominated a "Release", which was as follows:
"Flora E. Shelton" The evidence showed that on the date of its execution an agent of appellant called upon the administrator for the purpose of obtaining the release. There was "quite a bit of discussion", and the agent told the administrator that "the courts had always decided in favor of the companies in circumstances of this kind", and, "the policy was not valid, and the courts had always ruled with the companies on these kind of cases." He conveyed the idea to the administrator that the age of his decedent would bar the collection of the insurance under the policy. He did not disclose to the administrator any information about the conditions under which the policy was issued. The administrator had not listed the policy as an asset of the estate of Flora E. Shelton and without the taking of any court proceedings or the obtaining of approval by the court, he delivered the policy to the agent and signed the instrument heretofore set forth.
The legal contentions of appellant supporting its claim of error in overruling its motion for a new trial are summarized as follows:
(1) That the interpretation of the policy of insurance in question is governed by statutory law of Illinois; that the policy was an Illinois statutory standard form policy, and that the statute of such state prevents a waiver by the insurer of the provisions concerning age contained therein.
(2) That the evidence in the cause was insufficient to show express or implied waiver by insurer of age limitations contained in the policy.
(3) That to invoke the doctrine of waiver in this cause would subject the insurer to liability for a risk that was not included in the contract of insurance, but which was expressly excluded therefrom.
(4) That the evidence was insufficient to show fraud or lack of consideration for the release executed by appellee, and that the appellee had legal right to execute the same and release the appellant from liability on the policy, without the approval of the court in which the administration of Flora E. Shelton's estate was pending.
We agree with appellant that the interpretation and determination of the validity of the contract of insurance must be governed by the laws of the State of Illinois. The evidence showed that the policy in question was solicited, signed, delivered and the premium therefor paid in one transaction that took place at the Union Station in the City of Chicago. There is nothing in the policy providing for performance at a place other than that where the contract was made, and the complex questions that sometimes arise where such condition exists, are not here involved.
In interpreting contracts of insurance in cases involving a conflict of laws, where the parties are in different jurisdictions, a contract of insurance is deemed to be executed at the place where the last act is done which is necessary to complete the transaction and bind both parties. The general rule is that the state in which the application is made, the premium paid, and the policy delivered is the place where the contract is entered into. Waddell v. New England Mutual Life Ins. Co. of Boston, Mass. 1924, 83 Ind.App. 209, 147 N.E. 816; Hartliep Transit Co., for Use of Snow, v. Central Mutual Life Ins. Co. of Chicago, 1936, 288 Ill.App. 140, 5 N.E. 2d 879; Mutual Life Ins. Co. v. Johnson, 1934, 293 U.S. 335, 55 S.Ct. 154, 79 L.Ed. 398; 11 Am.Jur. Conflict of Laws, § 107, p. 390.
Appellant contends that the policy in question was issued under and that it is governed by the provisions of Sec. 470, ch. 73, Vol. 5 of Callaghan's Ill.Statutes, Ann., which is the same as § 970, ch. 73 of SmithHurd Ill.Statutes, Perm.Ed., and is a part of ch. 73, §§ 467 to 481, Ill.Rev.Statutes 1935. The policy contained this provision:
It is appellant's contention that such provision was required by the aforesaid Illinois statute, and that the second sentence of such provision, which requires the insurer to return upon request premiums paid for any period not covered by the policy, excludes or prevents the application of the doctrine of waiver. We do not agree with appellant in its interpretation of the particular statute of the State...
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