189 Ind. 373 | Ind. | 1920
This was a suit brought by appellee against appellant to recover upon a beneficiary certificate or policy of insurance issued by appellant to the decedent and the insured, who was a brother of the appellee, in which suit the appellee recovered a judgment against the appellant in the sum of $1,650, from which judgment appellant appeals, and alleges that the court erred in overruling appellant’s demurrer to appellee’s amended complaint, and that the court erred in sustaining the demurrer of appellee to appellant’s amended second paragraph of answer to the amended complaint.
The complaint alleges that the defendant, appellant, is a fraternal benefit association doing business under the laws of Ohio; that the policy was in the sum of $1,500, and was payable to the appellee, Frank Sylvester Clark, upon the death of the insured, George Clark, pursuant to the application by assured. A copy of the application is filed with the complaint and made a part thereof, marked exhibit A. A copy of the policy is also filed and made a part of the complaint, and marked exhibit B. The complaint alleges that the premiums were paid, and that the insured and decedent had done all that was required of them under the terms of the contract of insurance; that the insured, George Clark, died on June 23, 1913; that all assessments and obligations on the part of the assured
Appellant filed an answer in two paragraphs. The first paragraph was a general denial. The second
After alleging that decedent knew of the condition of his health, and that it was bad, and that he had been an inmate of various sanitariums, and had been treated by a physician for myalgia and rheumatism within the last five years preceding his application, said defendant goes on to state that the policy was issued under the laws of the State of Ohio, and that the construction and interpretation of the laws of the State of Ohio were to the effect that said beneficiary certificate issued to plaintiff was null and void by reason of said false and fraudulent representations in the application made by decedent, and a refund of premiums by defendant was' unnecessary, but that on March 11,1916, the said defendant paid to the clerk of the court for the use and benefit of the plaintiff the sum of $23.50, being in. full of all premiums, dues, fines and assessments paid by decedent to the defendant, with interest at six per cent, from the time of payment; that on September 28, 1914, defendant had knowledge that decedent had made said fraudulent misrepresentations in said application; that said decedent at the time of his death was in good standing with defendant organization, and had paid all fines, dues, and assessments and premiums required by said defendant under and by the terms of his application and certificate, and was not in arrears in any way, and that said decedent died on June 23, 1913. Appellant also alleges in said paragraph of answer
To said paragraph of answer plaintiff demurred for the reason that said paragraph does not state facts sufficient to constitute a cause of defense. This demurrer was sustained. The defendant excepted, and withdrew his first paragraph of answer, which was a general denial, and refused to plead further. The court then rendered judgment in favor of plaintiff in the sum of $1,650, together with the costs of action.
This paragraph of answer alleges that: “At all times herein mentioned the said decedent at the time of his death was in good standing with defendant organization, and had paid all fines, dues, assessments and premiums required by said defendant under and by the terms of his application and the certificate sued on herein, and was not in arrears in any way.” Said paragraph of answer also alleges that “the decedent died on the 23rd day of June, 1913; that on the 28th day of September, 1914, the defendant had knowledge and information as to all of the alleged false and untrue warranties, and thereafter, to wit, on the 1st day of March, 1915, finally disallowed plaintiff’s claim, and that this action was filed June 29,191.5; that no tender either to the plaintiff or any person representing the decedent was made until March 11, 1916.”
The payment of the premium with interest into court on the date and under the circumstances named in said second paragraph of answer was not within a reasonable time and was not a sufficient tender within the meaning of the law. No error was committed by the court in sustaining the demurrer to this paragraph of answer.
No error being shown in the record, the judgment is affirmed.