West v. National Casualty Company
| Citation | 112 N.E. 115,61 Ind.App. 479 |
| Decision Date | 04 April 1916 |
| Docket Number | 8,747 |
| Parties | WEST v. NATIONAL CASUALTY COMPANY |
| Court | Indiana Appellate Court |
From St. Joseph Superior Court; Samuel Parker, Judge Pro Tem.
Action by Frank West against the National Casualty Company. From a judgment for defendant, the plaintiff appeals.
Reversed.
Slick & Slick, for appellant.
Gaylord H. Case and Philip H. Quinlan, for appellee.
This is an appeal from a judgment in appellee's favor in a suit brought by appellant on an industrial insurance policy. The complaint is in two paragraphs. The averments of the first paragraph are in substance as follows: On July 6, 1910 appellee, by its policy of insurance for the consideration therein provided, insured appellant for one month from the date of such policy, and "for such further monthly periods, stated in the renewal receipts as the payment of premiums specified in said receipts would maintain said policy in force." By such policy appellee promised that in the event of an injury to appellant caused in the manner and resulting in the disability therein provided, appellee would pay to appellant the sum of $ 50 per month so long as appellant should be so disabled, and for any partial disability of the character mentioned in the policy $ 25 a month during the continuance thereof, not to exceed six months; that such policy is made part of the complaint as exhibit "A"; that thereafter appellant continued such policy in force by continued payment of the renewal premiums until his injury as hereinafter described; that such premiums were paid to W. A. Hyslop, appellee's agent at Boyne City, Michigan, who issued to appellant renewal receipts therefor; that the renewal receipt for the month of July, 1912, is attached to and made part of the complaint and marked exhibit "B"; that, after the execution of the policy of insurance, it was agreed between appellant and Hyslop that the renewal premiums on said policy would be received by him, Hyslop, in appellee's behalf, "at any time before the 10th day of each calendar month, on which date the amount is remitted" to appellee; that appellant thereafter in compliance with such understanding paid to Hyslop the monthly premiums on said policy at various times between the first and tenth of each calendar month; that the monthly renewal premiums for the months of April, May and June of the year 1912, were paid for each of said months respectively as follows, viz., the April premium was paid April 8, the May premium May 8, and the June premium June 10, 1912; that these premiums were each accepted by Hyslop and appellee, and renewal receipts were issued to appellant therefor by Hyslop which receipts are in all respects, except as to date, identical with exhibit "B" hereto attached, and were each antedated, that is to say, each of said receipts was dated back to the first of each month respectively; that the renewal premium on the policy for the month of July, 1912, was paid by appellant to Hyslop and appellee on July 7, 1912, and Hyslop thereafter, and in behalf of the company, issued its renewal receipt therefor to appellant which is herewith attached and marked exhibit "B"; that Hyslop did not antedate such July receipt back to the first day of July, but dated it July 13, which was six days after its actual receipt by him; "that on said seventh day of July, and for several months prior thereto, this plaintiff relied upon the practice and custom of said Hyslop and defendant of receiving renewal premiums on the policy at any time before the tenth of each calendar month, and was induced by said practice and custom to believe, and at said time did believe that defendant would receive and accept his premium on the policy at any time before the eleventh of each calendar month, without issuing a renewal receipt for such payment, and continue the policy in full force and effect from the first of each calendar month." Averments follow showing that on July 8, 1912, appellant received a personal injury caused by external, violent and accidental means, and showing the character of the injury, the disability resulting therefrom, the notice given to appellee; that appellant performed all the conditions of the policy on his part to be performed, etc., which averments have no controlling influence on the questions presented by the appeal, and hence are not set out.
The second paragraph is practically the same as the first, except that it alleges that the payment of the July renewal premium was made on July 8, 1912, and that on July 10, 1912, and for several months prior thereto it was appellee's practice and custom to accept monthly premiums on said policy and to issue renewal receipts therefor at any time before the tenth of each calendar month, and thereupon to continue such policy in force and effect; that appellant relied on such custom and was induced thereby, etc., continuing substantially as the first paragraph.
A demurrer to each paragraph of the complaint was overruled. There was an answer in denial and an affirmative answer, to which there was a reply in denial. The cause was submitted to a jury and at the conclusion of the evidence, the trial court peremptorily instructed the jury to find for appellee, which it did. Appellant filed a motion for new trial which was overruled and this ruling is assigned as error and relied on for reversal. This motion contains two grounds, each of which, in different form, predicates error on the action of the trial court in giving the peremptory instruction. It is well settled by the decisions of both the Supreme Court and this court, that such an instruction, in favor of the defendant, is never proper or authorized except in cases where there is a total absence of evidence upon some issue or fact essential and necessary to the plaintiff's right to recover, or where there is no conflict in the evidence, and, when considered in its entirety, such evidence, with all reasonable and legitimate inferences which the jury might properly draw therefrom, is susceptible of but one inference, viz., an inference which necessitates the verdict so directed. Lyons v. City of New Albany (1913), 54 Ind.App. 416, 421, 103 N.E. 20, and cases cited; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 425, 73 N.E. 899; Patterson v. Southern R. Co. (1913), 52 Ind.App. 618, 620, 99 N.E. 491; Premier Motor Mfg. Co. v. Tilford (1916), ante 164, 111 N.E. 645. Appellee, in effect, concedes the law to be as above stated, and insists that the evidence in the instant case fails to establish a fact necessary and essential to appellant's right to recover, viz., that it fails to show that appellant performed the condition of the contract of insurance on his part to be performed, which required the monthly premiums to be paid on the first day of each calendar month, and that by such failure to pay his premium on July 1, 1912, appellant forfeited his right to recover on such policy, for an accidental injury resulting to him July 8, following.
The evidence on this branch of the case is practically undisputed and consists of the policy of insurance, the application therefor, the four premium renewal receipts issued by appellee on the policy in question for the months of April, May, June and July, 1912, respectively, a letter from appellee to appellant, a letter from appellee's agent Hyslop to appellant, and the oral evidence of appellant, his wife, and attending physician. The policy bears date July 6, 1910, and its provisions affecting the question presented by this appeal are as follows:
The provisions of the application affecting the question presented are as follows:
"If any condition or provision required by such contract shall not be fulfilled * * * then the contract shall be null and void and all money paid thereon, shall be forfeited to the company, and I agree that my acceptance of the policy hereon issued shall be evidence of my acquiescence in all the statements, agreements and warranties herein set forth, and that the company shall not be bound by statements, made to or knowledge acquired by agents or solicitors, nor by any statement made by any agent or solicitor, not written in this application * * * I further agree to accept the policy subject to its provisions, conditions (and) limitations."
The renewal receipt, exhibit "B," for the month of July is as follows:
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