Western & Southern Life Insurance Co. v. Spencer
| Decision Date | 25 February 1932 |
| Docket Number | 14,142 |
| Parties | WESTERN AND SOUTHERN LIFE INSURANCE COMPANY v. SPENCER |
| Court | Indiana Appellate Court |
Rehearing denied May 19, 1932.
Transfer denied December 8, 1932.
From Clark Circuit Court; George C. Kopp, Judge.
Action by Bessie Spencer against the Western and Southern Life Insurance Company on two policies of life insurance. From a judgment for plaintiff, defendant appealed.
Affirmed.
Wilmer T. Fox, Bruce & Bullitt, William Marshall Bullitt and D. L Street, for appellant.
James W. Fortune, for appellee.
Appellee, as beneficiary, brought suit against appellant to recover for money alleged to be due her upon two policies of life insurance issued by appellant upon the life of one Louise Humes. The complaint was in two paragraphs. Each policy was the same, except as to number and date of issuing. The allegations of each paragraph of complaint, except as to the number and date of issue, was substantially as follows: That appellant was an insurance corporation organized in the State of Ohio, was operating an insurance business under the laws of Indiana and engaged in that business in Clark County, Indiana; that on July 18, 1927, appellant, in consideration of a cash premium and weekly payments to be made, issued a policy of insurance to Louise Humes, a copy of which policy was made an exhibit to the complaint; that on July 25, 1927, she authorized appellant to pay the amount of insurance due under the policy to appellee; a copy of said authorization was made an exhibit to the complaint; that the premiums were paid to and including the week of October 15, 1928, at which time Louise Humes died; that on October 16, 1928, and more than twenty days before bringing this suit appellee furnished proofs of death as required by the policy; that the said Louise Humes and appellee had performed all the conditions by them to be performed under the terms of said policy; that appellant had failed to perform the conditions imposed upon it; that by reason of said facts there was due appellee the sum of $ 500 with six per cent interest from October 16, 1928; that same was unpaid. Appellant filed separate motions to make each paragraph of complaint more specific by stating whether Louise Humes was in sound health on the date and delivery of the policy, which were overruled. Separate demurrers for insufficiency of facts were addressed to each paragraph of complaint; these were overruled. Appellant filed an answer in general denial, also an amended second paragraph of answer, to each paragraph of complaint. The facts alleged in both of them were substantially as follows: That the policy sued upon contained the following condition precedent: "No obligation is assumed by the company unless on the date and delivery hereof the insured is alive and in sound health." That at that time the insured was not in sound health, but was suffering from cancer of the uterus; that from May 5 to 24, 1927, she had been a patient in a hospital for treatment for that disease; that insured died on October 15, 1928; that appellant thereafter learned that insured was not in sound health on the date and delivery of the policy, and in December, 1928, refused to pay said policy because of failure to comply with said condition precedent; that on December 27, 1928, appellee brought suit in the Clark Circuit Court against appellant on said policy; that appellant elected to avoid said policy because of failure of insured to comply with the terms thereof, tendered to appellee the premium and interest thereon, which was refused; paid same into the clerk of the Clark Circuit Court, where it had since remained; that thereafter on March 26, 1929, and within two years after the date and delivery of the policy of insurance sued upon, appellant filed its answers to the amended complaint in said cause, a copy of this answer containing practically the same facts above stated was set out; that said answer was not withdrawn or stricken from said cause, but remained on file until appellee dismissed said action without prejudice in October, 1929; that the complaint in the present cause was on the same policy stated in the cause formerly dismissed. To each of these special paragraphs of answer appellee filed a reply in general denial. She also filed an amended second paragraph of reply to appellants' amended second paragraph of answer to appellee's first paragraph of complaint, and an amended paragraph of reply to appellant's amended paragraph of answer to appellee's second paragraph of complaint. These special paragraphs of reply were quite similar and alleged facts substantially as follows: That appellee admitted that the insured had a policy of insurance in appellant company; that before said policy was issued insured answered certain questions contained in appellant's application for insurance dated July 15, 1927 (which is made an exhibit), propounded to her by an agent of appellant, which answers were supposed to be written in the application by such agent at the time of its execution; that insured was informed by appellant's agent that as a matter of form she would be required to make written application for insurance and to answer questions in the application; that said agent being familiar with such matters would fill out the application and write the answers to questions therein; that said agent did write the answers without the insured having knowledge what the answers contained; that thereafter said agent presented the application to insured for her signature, informing her that he had written the answers to questions correctly as stated by insured; that she, being unable to read or write, accepted the agent's statement as true and signed her name by mark to the application without knowing its contents or having it read or explained to her by the agent; that insured truthfully answered all questions asked her by said agent about her past and present physical condition, her past sickness, her having been in a hospital, the times she had been treated by physicians and what they told her was the matter with her; that she did not conceal any fact known to her concerning her past or present physical condition, or that she had been in a hospital; that said agent announced that insured was a good risk; that said application was referred to appellant's medical examiner; that she answered all questions propounded by him truthfully; that on July 15, 1927, he examined insured, found her to be in good health and safely insurable, and on said day appellant issued to insured the policy of insurance sued upon in appellee's complaint; that the insured understood that appellant's agent had written the answers to the questions in the application truthfully as given him by her; that neither the insured or appellee had any knowledge to the contrary until the filing of appellant's answer; that the appellant issued the policy and collected premiums thereon until death of the insured, with full knowledge that she had been in a hospital prior to making application for same, and that she had been treated for cancer of the uterus; that appellant thereby waived any objections to acceptance of the insured by reason of any false answers given in the application for said policy and was estopped to set up such matter as a defense; that she had no knowledge of having any disease at the time the policy was delivered. Motions to make each of those special paragraphs of reply more specific were overruled. Demurrers...
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