Western & Southern Life Insurance v. Lottes

ON PETITION FOR REHEARING. In its petition for a rehearing, appellant, The Western and Southern Life Insurance Company, insists that we erred in failing to pass upon its proposition duly presented in its brief to the effect that the verdict of the jury against both appellants was contradictory, and therefore invalid as against said appellant insurance company, and cites in support of its contention the cases of United Transportation Co. v. Jeffries (1937),211 Ind. 226, 231, 5 N.E.2d 524; Indiana Nitroglycerin andTorpedo Co. v. Lippincott Glass Co. (1905), 165 Ind. 361, 75 N.E. 649; and Zainey v. Reiman (1926), 84 Ind. App. 480,151 N.E. 625.

An examination of each of said authorities discloses that they were negligence cases in which it was sought to hold the master responsible for an alleged negligent act of the servant, and in each case the jury by its verdict exonerated the servant from all negligence and held the master responsible for the alleged negligent act, which could only have been committed by the servant. The cases hold that such a verdict is contradictory for the reason that the master could only be guilty of negligence if the servant was negligent, and since the jury found that the servant was not guilty of any negligence alleged in the complaint, the master could not be held responsible for the same act.

The instant case involves a written application for insurance and a receipt attached thereto and the jury by its verdict held both the principal and agent 12. responsible for the same acts. Therefore, there is a clear distinction between the facts in the case at bar and the facts involved in the cases relied upon by appellant insurance company to support its contention that the verdict of the jury is contradictory. We hold that the verdict in the instant case is not inconsistent, or contradictory.

Again, we held in our original opinion that neither appellant was liable upon an oral or parol agreement of insurance as alleged in the first paragraph of complaint. We expressly held that appellant insurance company was liable under the second paragraph of the complaint solely because of the provisions contained in the written application for insurance issued by appellant insurance company and signed by the insured, Gilbert P. Lottes, and the provisions contained in the written receipt attached to said application, which provided for interim insurance if the first premium was paid in full, and that the only parties involved in the written application and receipt were the insured and appellant insurance company.

We further expressly held that the only question involved in this appeal was a question of fact as to the amount of money paid by the insured, Gilbert P. Lottes, to appellant's agent at the time the application for insurance was filed. We stated that, if this amount was equal to the full amount of the first quarterly premium due on the policy applied for in the application, the appellant insurance company was liable in this action, otherwise not. We held that there was sufficient evidence in the record to justify the jury in finding that the insured had paid the full amount of the first quarterly premium.

For the reasons stated, appellant's petition for rehearing is without merit and is hereby overruled.

NOTE. — Reported in 64 N.E.2d 805.