39 Ind. App. 215 | Ind. Ct. App. | 1906
Appellant, defendant in the court below, prosecutes this appeal from a judgment for $775, rendered against it and in favor of appellee, assigning errors on the action of the court in overruling its demurrer to each paragraph of the amended complaint. Clearly the purpose of this action is to enforce the return of money paid by appellee to appellant on account of. an alleged policy or contract of insurance issued to him by appellant, on the theory that it was void ah initio, and was entered into by appellee through a misapprehension of the law, of which appellant was aware at the time it issued the policy and accepted said payments.
4. Appellee relies to some extent on the allegation found in the second paragraph, “that plaintiff had no insurable interest in the life insured.” This is not the averment of a fact, but a conclusion of law, and does not aid the pleading. Franklin Life Ins. Co. v. Sefton (1876), 53 Ind. 380, 384. In our opinion from the facts and the authorities above referred to, appellant’s contention in this particular is not well taken.
What we have said in passing on the sufficiency of the first paragraph is largely applicable to the second. The demurrer to this paragraph should have been sustained.
Judgment reversed, with instructions to sustain the demurrer to each paragraph of the complaint, with leave to amend.