United States Health & Accident Ins. Co. v. Emerick

• Decision Date: 12 December 1913
• Docket Number: No. 8,096.,8,096.
• Citation: 103 N.E. 435,55 Ind.App. 591
• Parties: UNITED STATES HEALTH & ACCIDENT INS. CO. v. EMERICK.
• Court: Indiana Appellate Court

55 Ind.App. 591

103 N.E. 435

UNITED STATES HEALTH & ACCIDENT INS. CO.

v.EMERICK.

No. 8,096.

Appellate Court of Indiana, Division No. 1.

Dec. 12, 1913.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Nellie R. Emerick against the United States Health & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.R. P. Shorts, of Saginaw, Mich., and G. R. Eastabrook, of Indianapolis, for appellant. Williams & Schlosser, of Indianapolis, and William Amsden, of Marion, for appellee.

HOTTEL, J.

Appellant, on and prior to July 11, 1908, was doing business as an accident and life insurance company in the city of Indianapolis, with its principal office at the city of Saginaw, Mich. On said day Robert H. Emerick, then in the employ of the Cleveland, Cincinnati, etc., Railway Company, was solicited by one of defendant's agents to take out a policy of insurance in said company, with the result that such agent then and there filled out an application blank of said company for insurance for said Emerick. To pay the premiums for such insurance, said Emerick then signed and delivered to appellant's agent a written assignment of wages. On the 15th day of July, 1908, said Emerick was accidentally thrown from a moving freight train, and struck by the trucks of one of its cars, with the result that his back was broken, and he was otherwise injured. On July 20, 1908, appellant mailed to said Emerick, from its home office, a policy of insurance bearing date of July 20, 1908, which was received by Emerick on July 21, 1908. On July 21, 1908, said Emerick caused to be filled out the company's blank preliminary report and doctor's certificate pertaining to his injury and disability resulting therefrom, which report was mailed to appellant on the afternoon of July 21, 1908, and received by appellant July 23, 1908. On July 25, 1908, appellant wrote said Emerick a letter, in which it acknowledged the receipt of such preliminary report and doctor's certificate of injury, and at the same time and in the same letter mailed to said Emerick necessary blanks to be filled and returned to it at the termination of disability. On July 31, 1908, the insured died from the effects of said injury, leaving his widow, Nellie R. Emerick, who was then under 21 years of age and the sole and only beneficiary of said policy of insurance. On December 9, 1908, the appellee, by her next friend James H. Amsden, filed in the circuit court of Marion county the original complaint herein, which was an action on said policy of insurance bearing date July 20, 1908, and proceeded on the theory that such policy of insurance was in force from 12 o'clock noon July 20, 1908. On November 3, 1909, an amended complaint in two paragraphs was filed. In the first paragraph the appellee sought to correct and reform said policy of insurance as to date, and, as grounds therefor, alleged that by mutual mistake of the parties such policy was dated July 20, 1908, instead of July 11, 1908, as was agreed and intended by both parties. The second paragraph also sought a reformation of the date of said policy, and alleged fraud on the part of appellant in dating it July 20, 1908, instead of July 11, 1908. Judgment for $1,000 on such policy as reformed was asked in each paragraph. A demurrer to each of these paragraphs was overruled. There was an answer in two paragraphs, one of which was a general denial. A demurrer to the affirmative answer was overruled, and a reply in denial closed the issues.

There was a trial by the court, and a general finding and judgment for appellee on her first paragraph of amended complaint, and a general finding for appellant on the second paragraph of amended complaint. A motion for new trial filed by appellant was overruled. Proper exceptions were saved by appellant to the court's rulings on its said demurrer to the amended complaint and motion for new trial, and such rulings are separately assigned as error, and relied on for reversal.

The general finding and judgment conclusively show that the judgment herein was rendered on the first paragraph of the amended complaint, and that there was a finding for appellant on the second paragraph of complaint. Hence we need give no further consideration to the second paragraph of complaint.

In support of its contention that the trial court erred in overruling its demurrer to the first paragraph of amended complaint, appellant insists, in effect, that such paragraph is based on a parol contract for insurance, which its averments show was afterwards merged in a written contract, and that “all oral negotiations or stipulations between the parties which preceded or accompanied the execution of the written contract are to be regarded as merged in it, and that the latter must be treated as the exclusive medium of ascertaining the contract between the parties.”

[1] There is no doubt but that the general rule with reference to the merger of the previous parol negotiations in the subsequent written contract is substantially as appellant states it; but the Appellate Courts in stating such rule almost invariably indicate an exception thereto, viz.: That such “previous negotiations and propositions in relation to such contract are merged in the final agreement, and, in the absence of fraud or mistake, cannot be given to vary or modify such written agreement.” Cole v. Gray et al., 139 Ind. 396, 38 N. E. 856;Smith v. McClain et al., 146 Ind. 77, 87, 45 N. E. 41.

Appellee by her first paragraph of amended complaint brings herself within the exception indicated.

The averments of this paragraph necessary to a presentation of the foregoing and other objections urged against it are, in substance, as follows: Appellant, on July 11, 1908, solicited Robert H. Emerick to take insurance of it, and on the same day, in consideration of the written assignment of wages, executed and delivered to it by said Emerick, on the Cleveland, etc., Railway Company, for the sum of $7.60, then due, then and there agreed to insure, and did insure, said Emerick from said July 11, 1908, until September 11, 1908. Appellant agreed and contracted with said Emerick as above set out, and agreed that said insurance should become effective and in force on July 11, 1908, and agreed to furnish said Emerick a policy of insurance containing their said agreement of the character and kind and containing the terms as set out in Exhibit A, hereto attached and made a part hereof, save and except said policy, according to their said agreement, was to be dated July 11, 1908, and to be in full force and effect from said July 11, 1908. The terms of said contract of insurance were and are in form and substance as set out, and shown by said Exhibit A, which Exhibit A and contract of insurance are alike in all particulars, save and except the date of said Exhibit A, which, instead of being of date of July 20, 1908, was (as) contained therein, should be July 11, 1908, as provided in said original agreement made on July 11, 1908. In compliance with its agreement with said Emerick to furnish a policy of insurance containing the date of July 11, 1908, to become effective from said date, appellant, on July 20, 1908, executed and mailed to said Emerick a policy of insurance, which was received by him on July 21, 1908. Such written policy of insurance, a copy of which is attached hereto, marked Exhibit A, contained all the agreement and terms agreed upon on July 11, 1908, by and between said Emerick and appellant, “save and except by the mutual mistake of the said *** Emerick and defendant said policy was dated July 20, 1908.” Said Emerick had a broken back, and was otherwise injured, and on account thereof was compelled to remain in bed from the time of his injury until his death, and suffered great pain both of mind and body. Said Emerick, by reason of his said condition, was unable to attend to business, and unable to discover, and did not discover, said mistake as to said date written in said policy, and at all times believed that said policy was written and dated as of July 11, 1908, as agreed upon, and that said agreement of insurance was in full force from July 11, 1908. On July 25, 1908, appellant, by written letter, notified said Emerick that it had received his preliminary report and doctor's certificate pertaining to said disability, and mailed to him necessary blanks to be filled and returned to it after the termination of said disability, and “did thereby then and there treat and consider said insurance as in force, and did thereby waive all objections to said insurance...