75 Ind. App. 39 | Ind. Ct. App. | 1921
Action by appellant against appellee to recover upon a policy of life insurance issued by appellee on the life of appellant’s husband. The complaint was in four paragraphs, the substantial averments of the first paragraph being that on October 4, 1907, appellee executed and delivered to appellant’s husband, hereinafter mentioned as the insured, its written policy
The second paragraph avers that in addition to the $161.07 surrender value of the policy there was due the further sum of not less than $10 as surplus dividend. It further avers the attempted assignment of the policy to appellee to secure the $150 loan, the amount of which, with interest quarterly, was $154.89, and no more; that on April 5, 1916, appellee by written notice to insured declared that the interest on said loan due May 5, 1916, would be $7.40, which it demanded on or before that date; that by reason of the foregoing there was in the hands of appellee on January 4, 1916, after deducting all proper charges against the policy, more than sufficient to pay the quarterly premium on said policy which came- due on January 4, 1916, which thereby extended said policy to and including April 4, 1916; that it was the duty of appellee to make such proportion of the funds in its hands applicable to such policy as would pay such quarterly premium of that date, and continue such policy in force for three months thereafter; that by reason of the terms and appellee’s duty such policy was automatically extended to and including April 4, 1916, on which date the insured died while said policy was in full force.
The third paragraph avers that after January 4,1916, no premiums were actually paid by the insured, but that at no time prior to such death did appellee declare the policy forfeited, or so notify appellant that such forfeiture had been declared, and on April 5, 1916, with
It is averred in the fourth paragraph of the complaint that the anniversary of such policy'occurred on October 4, of each year in which it was in force; that the premiums were payable quarterly beginning with said anniversary date, and it was expressly stipulated that appellee would pay the face of said policy to the beneficiary named therein, the balance of the year’s premium, and any other indébtedness on account of said policy being deducted therefrom, and that by reason of such provision the policy, after the first quarterly premium on the same had been paid on October 4,1915, was thereby continued in full force, validity and effect until October 4, 1916, subject to the right of appellee, in the event of the death of the insured prior to October 4, 1916, to deduct from the proceeds of said policy all premiums for the policy year ending October 4, 1916, which had not been paid, together with any other indebtedness on account of said policy. The policy was by exhibit made a part of each paragraph of complaint. It was a nonforfeitable surplus sharing policy for $1,000 upon consideration of the payment of $9.99 on October 4, January 4, April 4, and July 4, of each year during its continuance. Appellant was named as the beneficiary subject to the right reserved to the insured to change such beneficiary.
*45 So far as concerns this action, the policy provided : “That no premium after the first shall be considered paid unless a receipt has been given therefor signed by the president or secretary, and countersigned by an agent authorized to receive such premium; that the payment of any premium should not have the effect of continuing the policy in full force longer than the time specified in the receipt therefor; that grace of one month during which the policy should remain in full force should be allowed in payment of all premiums, except the first, subject to an interest charge of 5% per annum; that the policy at any timé within five years succeeding default in payment of any premium will be reinstated upon satisfactory evidence of the insurability of the insured; that the dividends are payable in cash and may be applied toward the payment of premiums; that unless insured shall otherwise elect in writing dividends will be applied to the payment of the premiums, if any be due; that the insured, subject to the rights of any assignee, may designate the beneficiary; any such designation may be cancelled or changed by the insured during his lifetime, subject to the rights of any assignee, and shall be effected by the filing of a written request therefor with the company, accompanied by the policy and an appropriate endorsement on the policy by the company; that if any premium on this policy shall not be paid when due the same without action on the part of the insured * * * shall be charged as an automatic policy loan at 5% interest, if the then loan value of the policy, including existing additions, be sufficient to cover such loan in addition to any existing indebtedness and accrued interest. If the loan value or balance, thereof shall not be sufficient to pay the entire premium due, then it shall be used, if sufficient, to pay the premium for the shorter period, but not less than an entire quarterly premium, and if not sufficient to • pay the quarterly premium, the policy shall cease to be in force and any residue of the surrender value of said policy shall be paid in cash on the surrender of the same.”
The change of beneficiary is shown by written indorsement on the policy dated April 24, 1915, chang
A demurrer to each the first, third and fourth paragraphs was sustained, as to the first and third, and exceptions reserved, and overruled as to the fourth. Appellee filed an answer in general denial to each the second and fourth paragraphs of complaint, and a special answer to the fourth paragraph only. Its substantial averments were that on October 4, 1915, the insured paid the quarterly premium of $9.99 by the application of an annual dividend of $10.19, with twenty cents balance of dividend paid to the insured. Such premium was receipted November 4, 1915. Such payment had the effect to continue the policy in force until January 4, 1916, and that the insured did not thereafter pay any further premiums on said policy. There was a motion to make this special paragraph of answer more specific, which was overruled with exception, and there was also a demurrer to such special paragraph of answer, which was overruled, with exception. ’
The cause was submitted to the court for trial without the intervention of a jury, and the court found the facts specially and stated its conclusions of law thereon.
It appears by such finding of facts that on October 4, 1907, appellee issued to the insured the policy of insurance for $1,000 sued on; that the premiums were paid regularly until October 4, 1915, at which last-named date the insured paid $9.99, the amount of the quarterly premium, and no more, and received a written receipt therefor, by which it appeared that the premium
Upon these facts the court stated conclusions of law, that the law was with appellee, and that appellant take nothing by the action, and that appellee have judgment for costs. There was an exception to each .of the con
The errors assigned by appellant are: (1) Error in sustaining appellee’s demurrer to' the first paragraph of complaint; (2) error in sustaining appellee’s demurrer to the third paragraph of complaint; (3) error in overruling appellant’s motion to require appellee to make more specific the second paragraph of appellee’s answer; (4) error in overruling appellant’s demurrer to the second paragraph of answer; (5) error in the court’s first conclusion of law; (6) error in the court’s second conclusion of law.