58 Ind. App. 115 | Ind. Ct. App. | 1913
Action by appellee, Meyer Frankel, against appellant to recover upon two life insurance policies issued by the latter upon the life of Memi Frankel, his wife, in which he was' named as beneficiary. The first paragraph of complaint alleges substantially that appellant, a foreign corporation, on July 12, 1907, was engaged in the life insurance business in the State of Indiana. On said day, m consideration of a semiannual premium of $5.25 then paid to it, and to be paid throughout the continuance of the contract, appellant insured Memi Frankel, the wife of appellee, for the term of her natural life in the sum of $500, and by the terms of the contract agreed to pay appellee as beneficiary said sum upon her death; that insured died August 2, 1908, in the city of Indianapolis, and appellee caused full proofs of death to be furnished appellant on November —, 1908. At the time of insured’s death all premiums due on the policy had been paid, and the contract was in full force and effect; that appellant has not paid the amount stipulated in the policy, nor any part of it, and refuses to do so, denying all liability on said policy; that both insured and appellee have in all things conformed to the terms of the contract and have on their part carried out all the requirements thereof; that there has been unreasonable delay in the payment of the policy, wherefore judgment is asked for the amount of same, and all other proper relief.
The second paragraph contains substantially the same allegations as the first except that the policy sued on was issued June 6, 1908, in consideration of an annual premium of $5.89 payable quarterly for a term of twenty-years, and by the terms thereof appellant agreed to pay appellee as the beneficiary named the sum of $500 in the event insured should die before the expiration of said term. The policies
The only question raised on appeal with reference to the rulings of the court on demurrers to the paragraphs of answer and reply, is the overruling of appellant’s demurrer to the second and third paragraphs of appellee’s reply, addressed respectively to the eleventh and twelfth paragraphs of appellant’s amended answer to the complaint. The other error.° relied on for a reversal are the overruling •of appellant’s motion for a new trial, and the overruling of its motion to correct and modify the judgment.
The material averments of the eleventh paragraph of appellant’s answer are as follows: Appellant admits that Memi Prankel died on or about August 2, 1908, and that on July 12, 1907, it issued a policy of insurance upon her life for $500 as set out in the first paragraph of complaint; that in order to induce appellant to enter into this contract, appellee at the time being the husband of and having dominion and control over insured, compelled her, by intimidation and otherwise to make and sign a written application (a copy of which is made a part of this paragraph of answer by exhibit) for said insurance policy, containing among others the following statements:
“And it is further declared and agreed that the foregoing statements and answers and also the statements and answers on the next page hereof in answer to the medical examiner are correct and wholly true; that they shall form the basis of the contract of insurance, if one be issued, and that if they are not thus correct and wholly true the policy shall be null and void. * * * It is hereby declared and agreed by the undersigned that the answers contained in the foregoing are true and correctly recorded, and that together with those named in parts A and B shall become part of the contract of insurance with the Metropolitan Life Insurance Company.”
The twelfth paragraph sets up the same facts except that it answers the second paragraph of complaint.
The second paragraph of appellee’s reply, addressed to the eleventh paragraph of appellant’s answer avers, in substance, that Memi Frankel, prior to the time she made appli
Complaint is made that the assignment of errors is not sufficiently set out. While the statement made by appellant in its brief is not altogether perfect, it is a substantial compliance with the rules. It is earnestly insisted that the paragraphs of reply are fatally defective because they do not state facts which avoid the averments of the paragraph of answer to which they are addressed; that in fact they only partially meet the averments thereof. The theory of each paragraph of answer, it is insisted by appellant, is that appellee contrived in the first instance to secure a large amount of insurance on his wife’s life by various fraudulent misrepresentations which are set out, and after having procured said insurance, as the consummation of such plans, he caused her death either directly or indirectly.
It is insisted on behalf of appellee that no error was committed in overruling the demurrers to the paragraphs of reply because all the material allegations thereof could be proved under the general denial filed.
In 2 Bacon, Ben. Soc. and Life Ins. (3d ed.) §405 this language is found: “What is a reasonable time depends upon the circumstances of each ease and is usually a question of fact for the jury, or a mixed question of law and fact. If there is no dispute as to the facts the question is one of law for the court. Thus, notice within five days was held to be in time, and, under peculiar circumstances, two months has been held not an unreasonable delay, nor thirty days, nor eleven weeks, nor four months, nor twenty-four days, nor a month. But under different circumstances eleven days has been held unreasonable delay, and eighteen days, and a month, and seven months, notwithstanding the company, from other sources, had notice of the loss. Six days’ delay was held unreasonable where the agent lived in the same town and there was no extenuating circumstances. ’ ’
Judgment reversed, with instructions to sustain the demurrers to the third and fourth paragraphs of reply.
Note. — Reported in 108 N. E. 501. As to proofs of death, see 137 Am. St. 718. As to when delay in giving notice or making proof of death under policy of life insurance is excusable, see 41 L. R. A. (N. S.) 285. See, also, under (1) 25 Cyc. 922; (2) 25 Cyc. 1913 Anno. 884-new; (3) 25 Cyc. 947; (4) 25 Cyc. 885.