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lant's construction of the instruction is cor-injury, and that after so exercising care and rect. However, assuming that the boy was injured by the train coming in contact with him, and that fact was not controverted, it would seem that if the facts submitted by this instruction were found to be true, the boy must of necessity have been injured on the crossing. But if such conclusion is not legitimate, still we do not believe that the giving of said clause as a part of said instruction was substantial error.

caution, he ran across said track without having heard or seen the approaching locomotive engine, then I instruct you that plaintiff's son would not be chargeable with contributory negligence." This instruction presents for consideration the issue of contributory negligence. It is given on the theory that the boy was injured at the crossing, and on that theory such issue was important. The expressions "thoughtful care" and "care and caution" are not legally definite. There may be all degrees of "thoughtful care" and "care and caution." However, by general instructions the court fully advised the jury as to the degree of care that would be required in order that the boy should not be held guilty of contributory negligence. The instruction specifies as a place from which observations should be made as "within a few feet of the track." By general instructions, the court charged the jury respecting the duty to use reasonable care in selecting a place from which to look and listen. Construing such general instructions with this specific one, it is as if the court had said that one approaching a railroad crossing must exercise reasonable care in selecting a place from which to look and listen for the approach of a train, but that if he selects a place within a few feet of the track, he will be in the exercise of reasonable care in so far as concerns selecting a place from which to make such observations. "Few" is an indefinite expression for a small or limited number. Bouvier's Law Diction

As has been heretofore indicated, one question in controversy was whether the boy was injured south of the crossing while attempting to grab and cling to the train, or by the train coming in contact with him while he was attempting to pass over the crossing. If he was not injured in the first manner, then he was injured in the second manner. If injured in the first manner, the court, by an instruction given at the request of appellant, excluded the right to recover, thus leaving for the consideration of the jury the right to recover if the boy was injured at the crossing. Now, by this instruction the court is not submitting to the jury the question of in which of said manners the boy received his injury, but is submitting for the consideration of the jury certain facts which, if found to be true, would entitle plaintiff to recover. These facts are on the assumption that the boy was injured in said second manner, but whether he was injured in said manner is, by the instructions as a whole, left to the jury. We do not believe that the jury could have understood from said instruction that if they found the facts out-ary. For interpretations of the word in lined in said instruction to be true, they should find that the boy was injured at the crossing, as opposed to the theory that he received said injuries south of the crossing while making an effort to cling to the train. While said quoted clause does not add anything to said instruction in the connection in which it is used, and while it is apparent that said clause, if given as a part of said instruction, should have been included among the facts submitted, still we do not believe that the jury was misled by it, and we, therefore, hold that in the respect under consideration there was no prejudicial error in giving said instruction.

various relations, see the following: Indianapolis St. R. Co. v. Robinson, 157 Ind. 414, 61 N. E. 936; Butts v. Town of Stowe, 53 Vt. 600; Allen v. Kirwan, 159 Pa. 612, 28 Atl.

495.

It is at least a doubtful question whether or not the boy looked up the track after he looked through the space between the car and the mill. The point at which he stood at that time is within the meaning of the indefinite expression "a few feet from the track." The instruction, then, is open to the construction, as applied to the facts of this case, that if the boy stopped and listened and looked through said space, and thereupon [12, 13] Appellant insists that the court ran onto the track without making any furerred in giving instruction 12 in the series ther effort to ascertain the approach of a given by the court on its own motion. This train, it should be held as matter of law that instruction is as follows: "If you find from he was not guilty of contributory negligence. a preponderance of the evidence in the case Considering distances and measurements as that the plaintiff's son, John Broderick, on shown by the evidence, and the narrowness of the occasion in question, with thoughtful the space between the mill and the stub care of the presence of the railroad tracks, track, as testified to by the boy, and the fact stopped, looked, and listened within a few that such space extended parallel with the feet of the track of defendant, and exercised main track, the point at which the boy's care and caution to ascertain if there was line of vision intersected the main track can an approaching train on the track in either be geometrically demonstrated to have been direction, and that he did not know of the several hundred feet up the main track; so

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(54 Ind. App. 326)

(Appellate Court of Indiana, Division No. 1. Oct. 17, 1913.)

1. TRIAL (§ 296*)-INSTRUCTIONS-CONSTRUCTION-CURE BY OTHER INSTRUCTIONS.

diately onto the track, the train must have been south of such point, and within plain PRUDENTIAL INS. CO. OF AMERICA v. view, even if we assume that it was running SELLERS. (No. 8,076.) 20 miles per hour, the greatest rate of speed estimated by any witness. Conceding, for purposes of this discussion, that the facts outlined in this instruction made a proper case to be submitted to the jury on the question of contributory negligence, and that it would have been proper for the court to instruct the jury that they should consider said facts among others shown by the evidence, in determining the issue of contributory negligence, it still could not be said that, as a matter of law, under such facts, the boy was not guilty of contributory negligence.

[14] We are not unmindful of the rule that all the instructions must be construed together, and that if "upon considering all the instructions together it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate." Cooper v. State, 120 Ind. 377, 22 N. E. 320. However, we cannot say that the jury was not misled by the instruction under consideration. Moreover, the said rule applies only where the instructions under consideration are alike in being general or specific, as the case may be. It is a rule of uniform application that when a general statement is followed by a specific statement respecting the same subject-matter, the former is limited by the latter. 36 Cyc. 1119. It, therefore follows that correct general instructions given cannot cure the error committed in giving an erroneous specific instruction on the same subject-matter, for the very evident reason that such a specific instruction not only limits, but also erroneously applies, the principle announced in such general instructions. Clark v. State, 159 Ind. 60, 64 N. E. 589; Trogdon v. State, 133 Ind. 1, 32 N. E. 725. We hold that the giving of said instruction, especially in view of the state of the evidence, constituted erSee City of Lafayette v. Ashby, 8 Ind. App. 214, 231, 34 N. E. 238, 35 N. E. 516.

[15] Appellant complains that the court permitted the appellee's said son, John Broderick, when testifying as a witness, to answer, over objection, a question respecting his habit of relying on the flagman at the crossing to give him notice of danger. We are not informed by appellant's brief as to the nature of the objection made to this question, and only incidentally that any objection

at all was made. Under such circumstances we are not required to determine whether or not the permitting of said question to be answered constituted error.

For error in giving said instruction No. 12, the judgment is reversed, with instructions to sustain the motion for a new trial.

facts to be proved in order to entitle plaintiff The failure of an instruction, stating the to recover on an insurance policy, to state that when the policy was issued decedent's health must have been as described in the applicait must be found that plaintiff was entitled to tion, was not prejudicial, where it stated that recover, and other instructions charged that plaintiff could not recover if decedent was not in good health when the policy was issued.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 705-713, 715, 716, 718; Dec. Dig. § 296.*] 2. CONTRACTS (§ 176*)-CONSTRUCTION—QUESTIONS FOR JURY.

The general rule is that the construction of contracts is for the court and not the jury. Cent. Dig. 88 767-770, 917, 956, 979, 1041, [Ed. Note.-For other cases, see Contracts, 1097, 1825; Dec. Dig. § 176.*] 3. APPEAL AND ERROR (§ 1062*)-HARMLESS ERROR INSTRUCTIONS PREJUDICIAL EFFECT.

whether an insurance policy made the applicaThe submission to the jury of the question tion a part thereof was harmless error, where the policy contained an express provision to that effect and the question was not disputed, plication as a part of the policy. especially as other instructions treated the ap

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]

4. INSURANCE (§ 256*) — AVOIDANCE OF POLICY FOR MISREPRESENTATION - HEALTH OF INSURED-NECESSITY OF SHOWING FRAUD.

Where an insurance policy provides that, in the absence of fraud, the insured's statements shall be deemed representations and not warranties, it is not enough to show misstatements as to the insured's health, but fraud in the making of such statements must be shown, in order to prevent recovery on the policy.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 540, 549; Dec. Dig. § 256.*] 5. INSURANCE (§ 255*)-AVOIDANCE OF POLSUBSTAN

ICY FOR MISREPRESENTATIONS TIAL TRUTH OF STATEMENTS-MATERIALITY. Where the answers of the assured in his application are to be construed as representations, they need be only substantially true so far as such representations were material to the risk.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. § 255.*] 6. INSURANCE (§ 668*)-ACTIONS ON POLICIES -QUESTIONS FOR JURY-TRUTH OF REPRESENTATIONS.

Whether a representation as to the assured's health in an application for insurance is substantially true is a question for the jury. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*]

7. INSURANCE (§ 292*)-AVOIDANCE OF POLICY FOR MISREPRESENTATIONS INSURED'S HEALTH-MATERIALITY-"ILLNESS."

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In determining whether an insurance policy has been avoided for misrepresentations in not serious in its nature, cannot be considered the application, a mere temporary indisposition, an illness, and the mere calling into a doctor's

office for medicine to relieve such an indisposi- | deemed representations and not warranties, tion, or a call by the doctor for that purpose, and no such statement shall avoid the policy cannot be considered an attendance or a consultation by a physician; "illness" means a dis- or be used as a defense to a claim thereunder ease or ailment of such a character as to effect unless it be contained in the application for the general soundness and healthfulness of the the policy and unless a copy of such applisystem seriously, and not a mere temporary in- cation be indorsed upon or attached to the disposition which does not tend to undermine policy when issued." or weaken the constitution of the insured.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 691, 692; Dec. Dig. § 292.*

For other definitions, see Words and Phrases, vol. 4, pp. 3390, 3391.]

8. INSURANCE (§ 292*)-AVOIDANCE OF POLICY FOR MISREPRESENTATIONS INSURED'S HEALTH-MEDICAL ATTENDANCE.

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Where an insured represented in the application that she had not been "attended" by a physician for any "complaint" within three years, the fact that she had received two visits from a doctor for a cold did not necessitate a finding that the statement was not substantially true, and the court did not err in submitting the question to the jury, since the jury might infer that the statement was not intended to cover complaints not seriously affecting the general healthfulness of the insured.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 691, 692; Dec. Dig. § 292.*] Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by Daniel S. Sellers against the Prudential Insurance Company of America. From a judgment for plaintiff, the defendant appeals. Affirmed.

Whitcomb, Dowden & Stout, of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

HOTTEL, P. J. This is an appeal from a judgment for appellee, in an action brought by him to recover on a life insurance policy by the terms of which appellant insured "the joint life" of appellee and his wife, Nellie Sellers, for $500, "payable to the survivor of Daniel S. Sellers and Nellie Sellers beneficiary." The complaint is in the usual form, and contains a copy of the policy, together with a copy of the application indorsed thereon as an exhibit.

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Provision of application: "I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, as well as the statements and answers made or to be made to the company's medical examiner, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application."

Declaration of applicant at close of medical examination: “* * * I hereby declare that all the statements and answers to above questions are complete and true, and I agree that they shall form a part of the contract of insurance applied for. Dated this 22 day of Feb., 1910. of Feb., 1910. Nellie Sellers. [Applicant's Signature.]"

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The provisions and conditions of such pol-fraudulent. icy and the application therefor important and necessary to an understanding of the questions presented by the appeal are:

We have indicated above the question and the answer in the application upon which the third paragraph of such answer was predicated. This question and answer is the one on which appellant specially relies for a reversal, and it, with the complaint, will be sufficient to present all the questions involved in the appeal. There was a reply in denial to the affirmative answers. A trial by jury resulted in a verdict for appellee. A motion for new trial was overruled and exceptions properly saved.

Provisions of policy: "In consideration of the application for this policy, which is hereby made part of this contract, a copy of which application is indorsed hereon, and of the payment, in the manner specified, of the premium herein stated, hereby insures the joint life of the persons herein designated as the insured for the amount named herein, payable as specified, subject to the privileges [1] All errors assigned except that on the and provisions on the second and third pages motion for new trial are expressly waived. hereof, which are hereby made part of this Of the grounds for new trial appellant urges contract. Entire Contract Contain- only 4, 5, 6, 7, 8, 32, 33, and 34. The fourth ed in This Policy.-This policy (together with ground calls in question instruction No. 4 the copy of the application indorsed hereon) given by the court on its own motion. It contains the entire contract between the par- is insisted that this instruction purports to ties hereto, and all statements made by the set out the facts which, if proven by appelinsured shall in the absence of fraud be lee, would entitle him to recover, and that it

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However, the policy itself expressly provides, as above indicated, that the application "is made part of this contract, a copy of which is indorsed thereon." This provision of the policy was not disputed. The policy was admitted in evidence, and there was no question or issue raised as to the presence therein of such provision or as to its validity or meaning. In other words, it was admitted, in effect, that by the terms of the policy the application was made part thereof, and therefore such question could be determined but one way whether by court or jury; and the possibility of harm or prejudicial error having resulted to appellant on account of such instructions containing such provision is so remote that a reversal of the case, on such ground, in our judgment would be a clear violation of both the letter and spirit of section 407, Burns 1908.

fails to require the jury to find that, at the | in question are each technically incorrect and time the policy was delivered and the first open to the objections urged against them. premium paid thereon, the health of the decedent was in the same condition as described in the application. Among the other facts necessary to be found to authorize a verdict for appellee under this instruction was the following, viz., "that plaintiff was entitled to receive of and from the defendant the sum of $500." This condition in the instruction on which a verdict for the plaintiff was made to depend was in the nature of a conclusion to be reached by the jury rather than a fact to be found by it, yet such a conclusion could be reached only in the event that the jury found not only the other requisite facts enumerated in the instruction, but all the facts essential to a recovery, including that which appellant insists was omitted. So that the instruction, when considered in its entirety and in connection with other instructions given in the case, was not subject to an interpretation harmful to appellant.

Other instructions, given by the court on its own motion and repeated at appellant's request, told the jury in express terms that if it found that Nellie Sellers was not in good health at the time the policy was delivered and the first premium paid, or if they found that, at such time, she "was afflicted with tubercular trouble of the lungs," that appellee could not recover, but that the that appellee could not recover, but that the verdict in such case should be for appellant,

and that it made "no difference whether Nellie Sellers knew that she had tuberculosis or consumption at that time or not." (Our italics.)

[2, 3] Instructions 5, 6, 7, and 8 are addressed to the issue presented, respectively, by the second, third, fourth, and fifth paragraphs of answer, and each, respectively, undertakes to enumerate the facts necessary to appellant's recovery under the particular answer to which such instruction is addressed, and each begins as follows: "If you should find by a fair preponderance of the evidence that the application made by said Nellie Sellers for insurance was, by the policy of insurance, made part thereof." It is contended by appellant in effect that by this provision, found in each of said instructions, the court permitted the jury to construe the policy of insurance, and that this was the business and duty of the court; that the court alone should say what was the legal effect of the language of the policy.

There can be no doubt but that, generally speaking, the construction of contracts is for the court and not the jury. Erie Crawford Oil Co. v. Meeks, 40 Ind. App. 156, 164, 81 N. E. 518; Goodbar v. Lidikey, 136 Ind. 1, 3, 35 N. E. 691, 43 Am. St. Rep. 296; Regan v. Sheets, 130 Ind. 185, 189, 29 N. E. 1065, and authorities there cited; Mondamin, etc., Dairy Co. v. Brudi, 163 Ind. 642, 648, 72 N.

Our conclusion that no possible harın could have resulted from such instructions is strengthened and made certain by the other instructions given in the case, which expressly and affirmatively told the jury that, if it found certain facts to be true, it should find for the appellant. These instructions find for the appellant. necessarily involved a construction of the language of the policy of insurance by the court which made the application a part thereof, and, in some respects, several of such instructions were more favorable to appellant than the law warranted.

sustained by sufficient evidence and is conFinally it is urged that the verdict is not trary to law. It is contended that the evidence, especially that addressed to the issue presented by the third paragraph of answer, is without conflict, and that the question of its preponderance or weight is not involved. As before indicated, the theory of this paragraph is that the policy of insurance was fraudulently procured by the decedent, in that she, in her application, answered falsely the question propounded by the examining physician before set out herein, and that the answer to such question was material and induced the appellant to write the insurance. As applicable to this issue, it is insisted by appellant that the undisputed evidence of appellee, when testifying in his own behalf, shows that the decedent was visited at her home for a cold by a physician, probably twice, in October before she made her appli. cation for insurance, and that another witness testified that some time in October before the decedent's death in August, at a time when the witness and decedent were employed at a cotton mill, the decedent had been complaining for several days and one morning before they went to work told the witness that she had been to the doctor's before she came to work that morning and showed the witness her medicine.

[4] If the terms of the policy herein sued

decedent's said answer as a warranty, and such were the theory of appellant's defense, the evidence above quoted, if undisputed, and supplemented by proof showing that appellant had elected to avoid the policy and had seasonably returned, or offered to return, the premium received, would force us to accept as correct appellant's contention. The policy sued on, however, expressly provides that all statements made by the insured in the absence of fraud should be deemed representations and not warranties. This provision of the policy is important and of controlling influence on the question under discussion. By each of its said answers herein, the appellant recognized the force and importance of such provision by setting it out therein and by taking on itself the burden of proving that the alleged false representations set up in such answers, respectively, were fraudulently made. Hence it was not enough for appellant, under its said third paragraph of answer, to make the proof above indicated; but it was required to go further with its proof and show the other essentials of the fraud charged in the making of such answer.

[5] Where "the answers of the assured in his application can be construed as representations merely, they need be only substantially true so far as such representations were material to the risk." Catholic Order of Foresters v. Collins, 99 N. E. 745-748, and authorities there cited.

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such a character as to affect the general soundness and healthfulness of the system seriously, and not a mere temporary indisposition which does not tend to undermine and weaken the constitution of the insured.'" Fidelity, etc., Life Ins. Ass'n, v. McDaniel, supra, 25 Ind. App. 615, 57 N. E. 647, and authorities there cited.

[8] In view of these holdings, we are not prepared to say that the evidence above quoted on which appellant relies was sufficient to necessitate a finding by the jury that the decedent's answer that she had not been "attended" by a physician within three years for any "complaint" was not substantially true. We think the jury might have inferred from the question propounded, and from decedent's answer thereto, that she interpreted the question as meaning and intending to inquire whether or not within said period she had been "attended" by a physician for any "complaint" of such a character as to affect the general soundness and healthfulness of the system seriously, and that such question was not intended to include a visit by decedent to a physician or a visit or two by the physician at the home of decedent for a mere temporary indisposition which was not regarded by either the insured or her physician as being of such serious character as in any way to undermine or weaken the constitution.

This court had before it, in the case of Metropolitan Co. v. Johnson, 49 Ind. .App. 233, 246, 94 N. E. 785, 790, the question now under consideration and reached a conclusion adverse to appellant's contention. In the discussion thereof, Felt, J., in the opinion said:

ing for the names of physicians who had treated her within two years last past, and for what complaints, was not literally true; but we have construed her answers as representations and not as warranties, and she may have honestly interpreted this to mean treatment for any serious disease."

[6] In this connection it is insisted by appellant, in effect, that this court must hold as a matter of law that said answer was material. Appellant is supported in this contention by the case of Fidelity, etc., v. Mc-"True, her answer, 'None,' to a question callDaniel, 25 Ind. App. 608-620, 57 N. E. 645, and authorities there cited. There are, however, authorities in other jurisdictions which hold, and some in our own state which seem to indicate, that such question is one for the jury, so that the correct rule to follow in the determination of such question is left in doubt and uncertainty. Our examination of these authorities, however, convinces us that they all agree that the question whether such a representation is substantially true or not is a question for the jury. See Fidelity, etc., v. McDaniel, supra, 25 Ind. App. 619, 57 N. E. 645, and authorities there cited.

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[7] We think that it may also be stated that both of said Courts of Appeal of this state, and the appellate tribunals of other jurisdictions, agree that: "A mere temporary indisposition, not serious in in its nature, cannot be considered an illness, and the mere calling into a doctor's office for some medicine to relieve such temporary indisposition, or the calling at the home of the insured by the doctor for the same purpose, cannot be considered an attendance by a physician, nor a consultation with a physician, within the meaning of the question. 'Illness,' as used, means 'a disease or ailment of

We are aware that there is some apparent conflict between the language quoted and some expressions of this court in the case of Fidelity, etc., Co. v. McDaniel, supra; but the case of Metropolitan, etc., v. Johnson, is the last expression of this court on this subject and has the implied approval of the Supreme Court, a petition to transfer such case having been denied by that court. Hence, to the extent that the expressions of the court in the case of Fidelity Co. v. McDaniel, supra, is in conflict with the holding of the court in Metropolitan Co. v. Johnson, the former is overruled by the later case. For this reason, and for the further reason that we believe that the later expressions of the court on this subject are supported by reason and authority, we are satisfied to follow it.

Finding no available error in the record, the judgment below is affirmed.

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