71 Ind. App. 613 | Ind. Ct. App. | 1919
— The Model Life Insurance Company, hereinafter called the Model, organized and doing business on the assessment plan under Acts 1897 p. 318, §4739 et seq. Burns 1914, issued a policy of insurance for $2,500 on the life of George E. Barnett, November 7, 1901. This is an action by appellee, as administratrix of his estate, against appellant on said policy. The amended complaint, hereinafter referred to as the ‘complaint, upon which this case was tried, after alleging the incorporation of the Model and the issuance of said policy, a copy of which was attached to and made a part of said complaint by exhibit, alleged: “That the said George E. Barnett in all things fully observed, kept, performed and fulfilled all and singular, the things which were on his part to be observed, performed and fulfilled, according to the conditions, form and effect of said policy of insurance up to and including February -16 A. D. 1908;” that on March 12, 1904, pursuant to a certain transaction between the Model and appellant, the Model transferred to appellant all of its property and outstanding insurance risks, including that upon the life of George E. Barnett and, in consideration of such transaction and transfer,' appel
Appellant filed a motion to make this complaint more specific by requiring appellee to state whether .or not the transaction of March 12, 1904, between the Model and appellant was in writing, and to set forth whether the- alleged assumption and agreement •by appellant to perform the. obligations-of the Model was in writing, and, if in writing, to set out the terms ■ and conditions of such assumption. This motion being overruled, appellant filed its demurrer for want
The demurrer being overruled, appellant filed an answer in five paragraphs,* the first of which was a general denial.
The second admitted that appellee was the administratrix of the estate of the insured; that appellant was a corporation organized and existing under the laws of the State of Illinois, and engaged in life-insurance business; that on November 7,1901, and continuously to March 12, 1904, the Model was a mutual life insurance company; that on November 7, 1901, George E. Barnett became a member of said Model, on which date the Model issued to him.a policy of insurance for $2,500 for an annual premium of $90.35, and that it believed that the copy attached to the complaint was a correct copy of the policy, but it denied that the insured fulfilled the obligations on his part according to the terms of the policy. It also alleged that on March 12,1904, the Model and appellant entered into a written contract of reinsurance under the terms of which appellant reinsured the policiés of the Model then outstanding on the lives of the then living policy-holders, and that the obligations assumed by appellant as to said- policies and
After admitting that the insured, George E. Barnett, died on February 16, 1908, it alleged that the president and the secretary of the Model at the time when the policy sued on was issued continued to be such president and secretary from that time to March .12, 1904, and that no persons were elected by said Model to succeed such persons subsequently to said date; that, when said policy was issued both the president and the secretary resided in the city of Indianapolis, and continued to reside therein up to and subsequently to 1910; that they continued as president and secretary of the Model after March 12,1904, for the .purpose of service of summons and notice and for the purpose of having proofs of death furnished to said Model; that appellee never made any attempt to ascertain the whereabouts of the president and the secretary, or either of them, and never made any attempt or offer to furnish proofs of the death of said insured to said Model or to appellant for more than one year after the death of said insured; that appellant had an office in the business part of the city of Indianapolis continuously from March, 1904, to 1912.
.“Within one year after the death of the insured, the company must be furnished at its office in the City of Indianapolis with proof of death which shall comprise satisfactory statements establishing the validity of the claim, and • said lapse of*- time before filing such proof shall be a .conclusive bar to any recovery hereon.”
That no notice was ever given to the Model of the death of the insured, and that no notice of his death was given to appellant until more than two years after his death; that appellee by.reasonable diligence could have located and ascertained the address in Indianapolis of the president and the secretary of the Model prior to the expiration of one year from the death of the insured., but that she made no attempt to do so, or to notify the Model of said death; that appellee had knowledge of the reinsurance policy issued by appellant to the insured within one year from the death of the insured, and that the said reinsurance policy showed on its face the location and post office address of appellant; that the annual premium on said policy became due and payable November 7, 1901, and that it was not paid, by reason of which said policy lapsed.
'A copy of the reinsurance contract between appellant and the Model, and a copy of the reinsurance policy issued by. appellant to the insured were attached to and made a part of this paragraph of answer.. The third and fourth paragraphs of answer were stricken out on motion of appellee and are therefore omitted. Appellee filed a reply in two para
The cause was tried by the court, and at the request of the parties the facts were found specially. The facts so found are in substance as follows: 1. That the Model on and prior to November 7, 1901, was a corporation organized under the laws of Indiana for the purpose of engaging in life insurance business as a mutual company. 2. That on. March 12, 1904, appellant was a corporation organized under the laws of Illinois, and was then and still is authorized to engage in life insurance in this state. 3. On November 7, 1^01, said Model issued to George E. Barnett a policy for $2,500 at an annual premium of $90.35 payablé at the office of the company or its authorized agent who might produce a receipt signed by the president and secretary of said company, said policy being numbered 1546, and being set out in full. 4. On March 12,1904, said Model without the consent of .the insured entered into a written contract with appellant whereby said Model transferred all of its assets to appellant and abandoned its office in the city of Indianapolis, and since said time has maintained no office nor transacted any business; that, by reason of said contract with the appellant, the Model deprived itself of its power and ability to carry out said contract of insurance with the insured, which facts were known to appellant. 5. For this finding the court set out a copy of the reinsurance contract between appellant and the Model. 6. At the time said reinsurance contract was entered into, the Model owned .and possessed assets which it held in trust for its policyholders to the value of $43,000, which were delivered by it to appellant under said contract,
“Incorporated Under the Laws of Illinois Federal Life Insurance Company.
Number 5299 : Amount
$5000.
Chicago.
“This Policy of Reinsurance Is Issued To George E. Barnett of Logansport, County of Cass,' State of Indiana, to be attached to Certificate or Pqlicy No. 1546, of the.Model Life Insurance Company of Indiana, and subject to all the provisions of the contract of reinsurance between said The Model Life Insurance Company and this Company, dated March 12,1904, constitutes Policy Ño. 5299 of the
Federal Life Insurance Company of Chicago, Illinois.”
Said certificate was received by appellee’s intestate and retained by him up to the time of his death. This policy, except as above stated, is identical in form with the reinsurance policy copied in Federal Life Ins. Co. Kerr (1910), 173 Ind. 613, 89 N. E. 398, 91 N. E. 230. 8. "When said Barnett received said certificate so issued by appellant, and'at all times thereafter, he was ignorant of the terms of said contract entered into between the Model and appellant. 9. That said Barnett paid all premiums due from him to the Model so long as the Model continued to do business or to maintain an office in the city of Indianapolis or to
The court thereupon stated its conclusions of law in favor of appellee, to each of which appellant excepted, and thereafter filed its motion for a new trial. The specifications stated in the motion being that the decision of the court is (1) not sustained by sufficient evidence, (2) is contrary to law; that the court erred (3) in admitting and (4) in excluding certain evidence.
Appellant filed a motion in arrest of judgment, which was overruled, and judgment was rendered for appellee for $2,138.60 with interest from November 15, 1910,' that being the amount of the policy less the unpaid premiums amounting to $301.40.
The errors relied upon for reversal are: (1) The overruling of the motion to make the complaint more specific; (2) overruling demurrer to complaint; (3, 4) the sustaining of appellee’s motion to strike
In Risk v. Hoffman (1879), 69 Ind. 137, Risk purchased a tract of land and, as part of' the purchase price,' assumed the payment of a certain note and mortgage held by Hoffman. Hoffman sued Risk for the amount due on the mortgage. The court in the course of its opinion said: “The agreement of Risk to pay off the mortgage on the land is the foundation of this action.”
It was error to overrule the motion to make the complaint more specific.
It is true, as appellee contends, that the complaint alleges specifically that the insured performed all the conditions which by the terms of the policy he was required to perform. But that falls far short of alleging proof of death, which could only be performed by appellee or some other person after the death of the insured.
Appellee also contends that the complaint states
“The premium on my policy 5299 is due Nov. 7th. and I am sorry to say that the money that I expected to pay it with I am disappointed in getting although I may get it inside of 30 days if that will do, if not I will have to pass it up. How much of a paid-up policy am I entitled to as I have already paid up 3 yrs. If I continue to pay what premium will I have to pay in the future? The understanding that I had from the agt. of the Model Life was that the policy would be paid for in about 8 or 10 yrs. and from that time on I should receive a dividend each year on the earnings. I gave a note for the reserve that I understood was to be returned to me at the expiration of either 3 or 5 yrs.' I think although my memory on that is not clear on just the time. I should like very much to hear all regarding the matter at your earliest convenience and oblige. ’ ’
While this might be considered as some evidence that he did not know the exact amount of the premium he was required to pay at the date the letter was written, it is certainly no evidence that he did not thereafter and long before his death learn all about the terms of the contract, and in fact he might have known of its terms prior thereto and have forgotten the same, or not have had them in mind when he wrote this letter.
The only evidence upon this question is to be found in certain letters, the first of which is the one written by the insured to the appellant under date of November 4, 1904, hereinbefore set out. The others are three letters written by appellant to the insured,, and dated November 8,- November 22, and December 8, 1914, and are as follows:
“Nov. 8, 1904. '
“Mr. George E. Barnett,
Logansport, Ind.
B-e-Federal Policy 5299, — >■
Model No. 1546.
“Dear Sir: The premium on your policy falls due on November the 7th as you said. If paid any time previous to December 7, it will be entirely satisfactory. If you are unable to pay the full premium in cash at that time, please write us a few days before the end of November making a remittance of a substantial part of the premium in cash and we will let you sign notes due in 60 days and four months after covering the remainder * * * The policy in question has no paid-up value at this time, for the reason that it was issued by an assessment life insurance company which did not accumulate the proper reserves in cash. * * * For the present you may continue paying the same premium which you paid to the Model Life, but. you must understand that the assessment clause in your policy is absolutely waived and eliminated by the Federal, and the maximum premium you could be*641 required to pay would be $187.50 annually; $97.50 if paid semi-annually, and $49.70 if paid quarterly. Tbe difference between this premium and the premium you paid will be charged against your policy. An amount equal to that you have been paying will be charged against the note which you say you deposited. This will be done for two more years, you having paid three annual payments on your policy. This note, of course, represents a reserve which you should have paid, but in view of the fact that you have not paid it, it seems a proper charge against the policy and will be deducted from any settlement made under the policy in the future, unless you should see fit to pay it off in cash at some time.”
“Nov. 22,1904.“
“Mr. George E. Barnett,
Logansport, Indiana.
“Dear Sir: I have your esteemed favor of the 21st inst, regarding your policy 5299.
“I beg to advise you that at the time you applied for insurance in the Model Life you signed a note for $451.75,. being the amount of one-half your annual premium for five years. This stands a lien against your policy bearing 5% interest. The amount you have been paying the past three years $90.35 was the other half of the annual premium which you stipulated by your application to pay in cash. Up to this time you have lived up to the letter and spirit of your application. The records of the Model Life show your annual premium to be $180.70; just $6.80 less than the Federal Life premium, therefore, this*642 note which, you have signed for one-half the premium would be deducted' from the amount of your policy should it become a claim. You are privileged, however, to pay this indebtedness in cash and continue your insurance from this date by paying the regular Federal Life premium of $187.50 annually, or $97.50 semi-annually or $49.70 quarterly. Or you can continue paying the interest on this note as each premium falls due together with the half of the premium as you have been paying which amounts to $112.94. In order to give you the exact condition, we might say the half annual premium is $90.35 and $112.94 is the interest on the five year note which you signed at the time application was made. From this $112.94 there is to be deducted a credit of $16.40; being the pro rata amount due you on .account of the cash and assets transferred from the Model Life to the Federal Life at the time we took that company over. This credit will extend over a period of five years at which time it will exhaust. I trust I have made the matter clear to you, but if I have not I will gladly explain any point that you do not fully understand.
“You are now insured in an ‘old line’ legal reserve Company, one that will safely regard your • interest and treat you with the utmost fairness and equity.
“Hoping this explanation is entirely satisfactory to you, I am ' Respectfully,
“W. E. Brimstin, Asst. Secretary.”
Appellant’s letter, of December 8, 1904, in so far as material, is as follows:
*643 “Re Policy 5299 Model 1546.
“Dear Sir: The premium on your policy was due the 7th ult. and remains unpaid, although more than thirty days have elapsed.
“Should you prefer to pay the premium semiannually or quarterly, let us know and we will inform you the amount of same.
“Please forward with your remittance the enclosed application for re-instatement duly executed hy you.
“At maturity a life insurance policy is immediately convertible into cash. This cannot be done with any other assets as a general rule. * * * We respectfully but earnestly urge you to remit at once the premium together with the enclosed health certificate or application for re-instatement duly executed. The application being satisfactory the remittance will be accepted the same as if it had been received^ when the above premium was due # * I hope you will give this matter your immediate attention in the interest of both yourself and your beneficiary."
“By C. A. Atkinson,
“Second Vice President.”
There is some confusion in the evidence relative to the amount of the policy issued to the insured. In the letter written by Mr. Barnett under date of November 4, 1904, he refers to his policy No. 5,299, and mentions a note which he says he gave the Model. This note is also referred to in appellant’s letter of November 8, and more fully explained in the letter of November 22, in which it is stated that at the time Mr.
It appears from all of the letters above quoted that George E. Barnett and the appellant, when writing said letters, had in mind appellant’s policy No. 5,299 calling for $5,000, and not the policy sued upon, which called for $2,500. This is clear from the statement in Mr. Barnett’s letter of November 4, in which he said:
“The premium on my policy 5299 is due November 7th,.and I am sorry to say that the money. I expected to pay it with I am disappointed in getting, although I may get it inside of thirty days if that will do, if not, I will have to pass it up.”
There is no evidence in the record other than that contained in these letters relating to the note mentioned in them or in anywise explaining the difference in the amount of the-Model policy No. 1,546 and
“You-can continue paying the interest on this, note as each premium falls due together with the one-half of the premium as you have been paying which amounts to $112.94. In order to give you the exact condition we might say that the one-half annual premium is $90.35 and the difference between the $90.35 and $112.94 is the interest on the five year note which you signed at the time*646 the application was made. ' From this $112.94 there is to be deducted an aggregate of $16.40 being the pro rata amount due you on account of the cash and assets transferred from the Model Life to the Federal at the time we took this company over.”
The annual interest on $451.75 at five per cent, is $22.59. This, when added .to the annual premium of $90.35, makes $112.94, which was the amount he was required to pay as stated in this letter. At the time the reinsurance contract was entered into, the Model had' assets in the way of cash notes and' bonds aggregating $43,000, which under the law belonged to the policyholders and, which, according to the letter of November 22, was being prorated among the' said policyholders, and Mr. Barnett was to be given a credit of $16.40 on the amount due from him to the Federal on account of the cash premium and the annual interest on his note.
There is no claim or contention on behalf of appellee that her husband at any time paid or. tendered any premium to either the Model or to the appellant subsequently to the premium due November 1, 1903. There is no evidence or finding that Mr. Barnett was able, .ready ánd willing to perform the contract and make the payments as required by the terms of the policy. Appellee evidently believed that-it was necessary as a matter of pleading to allege in her reply that he was able, ready and willing to perform, and on leave of court amended her reply by inserting an allegation to that effect. No evidence was introduced upon that subject other than what may be inferred from the letter written by Mr. Barnett to appellant under date of November 4,1907, hereinbefore set .out,
We do.not deem it necessary to set out or to discuss the conclusions of law. In view of the condition of the pleadings and evidence, we are of the opinion that justice will be best subserved by reversing the judgment and ordering a new trial, instead of directing the court to restate its conclusions of-law. Judgment is therefore reversed, with directions to sustain the appellant’s motion for a new trial, to sustain the demurrer to the amended complaint, and for further proceedings not inconsistent with this opinion.