Union Fraternal League v. Sweeney
| Decision Date | 04 February 1916 |
| Docket Number | 22,804 |
| Citation | 111 N.E. 305,184 Ind. 378 |
| Parties | The Union Fraternal League v. Sweeney |
| Court | Indiana Supreme Court |
From Clark Circuit Court; Harry C. Montgomery, Judge.
Action by Katie B. Sweeney against The Union Fraternal League. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)
Affirmed.
Thomas K. Brock and James L. Bottorff, for appellant.
James W. Fortune, for appellee.
Action by appellee against appellant on a policy of insurance for $ 1,000, issued by appellant on the life of appellee's husband, and payable to appellee. Appellant answered the complaint in three paragraphs, the first of which was a general denial. The second and third denied liability because of alleged fraud in procuring the policy. There was a trial by jury, and verdict and judgment for appellee. Appellant assigns error on the overruling of its motion for judgment on the jury's answers to interrogatories submitted, and overruling its motion for a new trial. There is no irreconcilable conflict between the general verdict and the facts specially found.
Appellant contends that there is reversible error disclosed by the court's instructions to the jury. The complaint alleges in general terms that appellee performed all the conditions of the contract which were therein required of her to be performed, but makes no reference therein of the waiver by appellant of the performance of any condition. One of appellant's rules, constituting a part of the contract reads as follows:
"All claims for death benefits shall require the affidavits of the claimant, attending or family physician undertaker, friends or such others (or such of them) as are clearly necessary to establish the claim, and said affidavits shall be upon the forms of blanks furnished by the board of trustees, and are required to be fully answered, and until full proof be received as required, the order shall not be bound to take any action upon the claim."
The evidence shows that there was not a strict compliance with the above condition. The proof submitted to appellant contained neither an affidavit by appellee nor one by the attending physician. Before the filing of appellant's answers it denied liability on the policy and tendered to appellee the full amount of assessments or premiums paid. The tender was refused, and thereupon appellant paid the sum tendered to the clerk of the circuit court for appellee's benefit.
By its requested instruction No. 4 appellant requested the court to inform the jury that the provisions of the rule we have set out must be fully complied with, and that unless it is shown by a preponderance of the evidence that there was such compliance appellee could not recover. The court refused to give the instruction as requested, but modified it so as to inform the jury that there could be no recovery unless a compliance or waiver, was shown. As modified, the instruction was given. Appellant earnestly contends that as no waiver was pleaded, and full performance was averred, a recovery can not stand on proof of waiver of a condition precedent. Section 376 Burns 1914, § 370 R. S 1881 reads as follows: The question here presented has been considered by various courts, and while the holdings are not entirely harmonious, we believe the greater weight of authority supports the proposition that under a declaration of performance proof of waiver by defendant is competent and will be deemed as the equivalent of proof of performance. West Rockingham Mut. Fire Ins. Co. v. Sheets (1875), 26 Grat. (Va.) 854; Taunton Bank v. Richardson (1827), 22 Mass. 436, 444, citing 2 Starkie, Evidence 274; Butterworth v. Western Assur. Co. (1882), 132 Mass. 489; Berliner v. Travelers' Ins. Co. (1898), 121 Cal. 451, 53 P. 922; American Life Ins. Co. v. Mahone (1878), 56 Miss. 180; Eureka Fire, etc., Co. v. Baldwin (1898), 17 Ohio C. C. 143; Nickell v. Phoenix Ins. Co. (1898), 144 Mo. 420, 46 S.W. 435; Burgess v. Mercantile, etc., Ins. Co. (1905), 114 Mo.App. 169, 89 S.W. 568. See, contra, Anders v. Life Ins. Clearing Co. (1901), 62 Neb. 585, 87 N.W. 331; Fidelity, etc., Co. v. Gate City Nat. Bank (1895), 97 Ga. 634, 25 S.E. 392, 54 Am. St. 440, ...
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