21 Ind. App. 88 | Ind. Ct. App. | 1898
The only error assigned by appellants in this cause is that the lower court erred in sustaining appellee’s demurrer to appellants’ complaint. Appellants are the only heirs of one Emanuel Carpenter, deceased, and are the children and widow of said Emanuel Carpenter, deceased, whose estate •was settled without administration. This action was brought against the appellee and the American Casualty Insurance and Security Company. Appellee appeared and separately demurred to the complaint, stating as cause that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the lower court, and, appellants re
The complaint is upon a written contract and is in one paragraph. It alleges the death of Emanuel Carpenter, the settlement of his estate without administration, and that appellants are his heirs and only heirs at law; it alleges that a certain contract was executed'by all of the parties to this action, and makes the said contract a part of the complaint. This contract is in the following words: “This is to certify that Emanuel Carpenter, Sec. 25, Coal Bluff, is insured by the American Casualty Insurance and Security Company of Baltimore, Md., against accident resulting in bodily injury or death. By the terms of the policy the above named person, so long as he remains an employe of the Chicago & Eastern Illinois Eailroad Company, will receive through the paymaster of that railroad company in case of accident, however and whenever happening between the date hereof and the first day of May, 1893, the following benefits: (1) For accidental injury not resulting in death, one-half of his usual wages during disablement if not more than fifty weeks, also doctor bills. (2) For accidental injury resulting in his death his legal representatives will receive one-half of his usual wages for one year and doctor bills and funeral expenses. The above benefits will not accrue to said person except for accidents sustained while he is in the employ of the Chicago & Eastern Illinois Eailroad Company, and only between this date and the first day of May, 1893. No benefits will accrue hereunder for any accident occurring as the result of a riot or other violation of the law. This certificate is issued in accordance with the policy of insurance issued by the American Casualty Insurance and Security Company to the Chicago & Eastern Illinois Railroad Company for
Does the complaint state facts sufficient to create a liability upon the part of the appellee? We are unable to find in the complaint any averment charging appellee with a breach of any contract declared upon or the breach of any duty owing to appellants or their decedent. It is not charged that the moneys or any part thereof which appellee deducted from decedent’s wages was not applied to the payment of premiums due from him to appellee’s codefendant, neither is it charged that appellee received and retained any