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

• Decision Date: 28 February 1908
• Docket Number: No. 6,079.,6,079.
• Court: Indiana Appellate Court
• Parties: UNITED STATES HEALTH & ACCIDENT INS. CO. v. CLARK.

41 Ind.App. 345

83 N.E. 760

UNITED STATES HEALTH & ACCIDENT INS. CO.

v.CLARK.

No. 6,079.

Appellate Court of Indiana, Division No. 1.

Feb. 28, 1908.

Appeal from Circuit Court, Randolph County; John W. Macy, Judge.

Action by Nellie Clark against the United States Health & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.White & Young, for appellant. J. W. Brissey, for appellee.

MYERS, J.

Appellee, as sole beneficiary under an accident insurance policy executed by appellant to her husband, William E. Clark, brought this action against appellant to recover on that policy. Appellant sought to abate this action by an answer in two paragraphs-the first on the ground that the court did not have jurisdiction of appellant; and the second paragraph proceeded upon the theory that the court did not have jurisdiction over the subject-matter of the action. On motion the first of these paragraphs was stricken out. A demurrer to the second was overruled, and a reply in general denial filed. The issue thus formed was tried by the court and determined in favor of appellee. Appellant answered the complaint in seven paragraphs; the first being in denial. A demurrer was sustained to the fifth and sixth paragraphs, and overruled to the second, third, fourth, and seventh. Appellee replied by a verified general denial, and by a second paragraph directed to the fourth paragraph of appellant's answer. The issues thus joined on the merits of the controversy were submitted to a jury for trial, resulting in a verdict in favor of appellee, and with the verdict the jury returned answers to 81 interrogatories. Appellant's motion for judgment on the answers to interrogatories and its motion for a new trial was overruled, and judgment rendered for $672.60. The errors relied on are (1) the court has no jurisdiction of the subject-matter of the action; (2) that the court erred in sustaining the demurrer to the fifth and sixth paragraphs of answer; (3) that the court erred in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; and (4) that the court erred in overruling appellant's motion for a new trial.

1. Appellant, in support of its first assignment, relies upon propositions in effect that courts of this state obtain jurisdiction over foreign insurance companies and the subject-matter of the action by virtue of special laws applicable to such companies only, and that the laws relative to foreign companies and corporations regarding service of process do not apply; that, in order to give the courts of this state jurisdiction over the subject-matter of an action, it must appear that the liability for which suit is brought took place in and grew out of the special business to be transacted by such companies doing business in this state. Under this assignment the question of jurisdiction over appellant is not presented. The question is: Did the trial court have jurisdiction over the subject-matter of this action? “By jurisdiction of the subject-matter is meant jurisdiction of the class of cases to which the particular case belongs.” Chicago, etc., Ry. Co. v. Sutton, 130 Ind. 405, 410, 30 N. E. 291; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453. Upon the face of the complaint, it appears that appellant, a foreign insurance company, on August 7, 1903, in consideration of a premium then received, executed to William E. Clark a policy of insurance on his life in the sum of $600; that appellee was the sole beneficiary named in that policy; that appellant agreed to pay said sum in the event that William E. Clark should lose his life by violent, external, or accidental means; that on August 15, 1903, said William E. Clark died as the result of injuries received by falling from a scaffold. It also appears that decedent in his lifetime performed all the conditions and stipulations of the contract on his part to be performed. Other allegations are found showing proof of death and a liability from appellant to appellee. The subject-matter of this action was one of contract, and belonged to a class within the jurisdiction of the court in which the action was brought; and, this being true, it follows that jurisdiction of the subject-matter will be presumed until the contrary is made to appear. By the plea in abatement, the jurisdiction of the court as to the subject-matter of the action was challenged, and the issue thus raised the trial court decided against appellant. On that issue no further steps were taken and no questions saved for review. A portion of appellant's argument seems to be upon the theory that the court did not have jurisdiction of appellant. This argument is not applicable to the assignment, and, if it were, the filing of an answer to the merits of the cause amounted to a general appearance, and gave the court full jurisdiction over the person of appellant. American Mutual Life Insurance Co. v. Mason, 159 Ind. 15, 20, 64 N. E. 525, and cases there cited; Williams v. State (Ind.) 82 N. E. 790. The court having obtained jurisdiction of the parties to the action, and such action being founded upon a demand growing out of the business in which appellant was engaged, and of the class which the court had the right to hear and determine, the fact that the contract sued on was executed in another state will not affect the court's jurisdiction over the subject-matter. By statute it was unnecessary that the claim of appellee should grow out of any business or transaction had by appellant in this state. Section 4918a, Burns' Ann. St. 1901. Appellant has not pointed out any fact in the record or statute in this state governing foreign insurance companies, nor do we know of any which prohibits a court of general jurisdiction having jurisdiction of the parties from adjudicating the merits presented by the issues in this cause.

2. The fifth and sixth paragraphs of answer count upon a breach of warranty as a defense to the action on the policy. The breach averred relates to certain statements of fact regarding the insured's age, vision, medical and surgical treatment; that appellant was ignorant of the facts so stated in the insured's application for insurance; that such facts were all peculiarly within the knowledge of the insured; that appellant relied upon such statements and was induced thereby to issue said policy; that said policy was issued in consideration of the premiums and of the statements and agreements in the schedule indorsed thereon and made a part thereof, which statements were warranted to be true; that the insured agreed, if any statements in the application were untrue, the policy should be null and void; that said statements relative to age, vision, medical and surgical treatment, and so warranted to be true, were false and known by said insured to be false at the time they were made, and averring wherein said answers were untrue. In addition to the facts common to both paragraphs, it is averred in the sixth paragraph that the insured misrepresented certain facts concerning himself, which were material to the risk; that as soon as appellant discovered that said answers and statements of fact had been misrepresented, and before the bringing of this action, it mailed to appellee a bill of exchange payable at any bank for the sum of $5, the same being the premiums paid by the insured on account of said policy; that appellee refused to accept said bill of exchange, and returned the same to appellant. The application, which was made a part of each of these answers, contains many other statements and answers concerning the insured, and about which there is no complaint. From any facts appearing in either of these paragraphs the contract was one which the parties might lawfully make; but it is not without the rules of law applicable to contracts generally, expressly authorizing a rescission for a breach of warranty. For the breaches averred the contract provides that it shall be void, but by law it is made voidable at the election of the insurer upon the theory that the warranties are for its sole benefit, and any breach may be waived by it and the contract continued in force. Masonic Mutual Benefit Ass'n v. Beck, 77 Ind. 203, 40 Am. Rep. 295. Both paragraphs show an election on the part of the insurer to rescind the contract, but they are insufficient for the reason neither aver facts showing a return or offer to return by legal tender the money paid upon the faith of the promised indemnity. Modern Woodmen of America v. Vincent (Ind. App.) 80 N. E. 427;Id., 82 N. E. 475;Glens Falls Ins. Co. v. Michael, 167 Ind. 659, 74 N. E. 964, 79 N. E. 905, 8 L. R. A. (N. S.) 708; Ætna Life Ins. Co. v. Bockting, 39 Ind. App. 586, 79 N. E. 524;Supreme Lodge Knights of Honor v. Metcalf, 15 Ind. App. 135, 43 N. E. 893;Gray v. National Ben. Society, 111 Ind. 531, 11 N. E. 477; Joyce on Insurance, § 1398; Selby v. Mutual Life Ins. Co. (C. C.) 67 Fed. 490. It appears that appellant tendered to appellee a bill of exchange for the amount of the premiums received on account of the policy in suit. A bill of exchange is not money in any sense, and is not made a legal tender by any statutory enactment. Boyd v. Olvey, 82 Ind. 294, 298;Martin v. Bott, 17 Ind. App. 444, 450, 46 N. E. 151;Goss v. Bowen, 104 Ind. 207, 2 N. E. 704. There was no error in sustaining a demurrer to each of these paragraphs.

3. Appellant insists that its motion for judgment on the answers to interrogatories should have been sustained, for the reason (1) that the court had not jurisdiction of the subject-matter of the action; (2) that such answers show a breach of warranty; and (3) that final proofs of death were not furnished to the company according to the terms of the policy. The answers material to the questions presented show: That the insured signed a written application for insurance. That he correctly stated his age as 38 years to appellant's agent, and it was...