19 Ind. App. 49 | Ind. Ct. App. | 1898
— Appellee sued appellant to recover premiums paid on numerous life insurance policies issued to appellee by appellant upon his life, and the livés of members .of his family. The complaint avers that, beginning in 1891, and up to and including May 22, 1893, appellant issued to appellant eight separate policies, the premiums upon which were payable weekly; that he paid said premiums as they became due, up to July 20,1895, and paid in all $200.00; that on the said 20th of July, 1895, there was due upon all of said policies as premiums, the sum of 99 cents, which said sum was duly tendered to appellant, through its proper officer, at its office in Indianapolis, Indiana, but that appellant refused to accept and credit the same, and has ever since refused, wrongfully and without cause, to receive from appellee the premiums due on’ said policies, and declared said policies void, and has lapsed and canceled the -same. It is further averred that appellant still illegally and wrongfully withholds from appellee the amount so paid by' him as premiums upon said policies; that demand has been made upon appellant for the return of all of said premium, and that it has refused to pay the same; and that by reason of the illegal and wrongful forfeiture and cancelation of said policies appellant became, and still is, indebted to appellee in the sum of ,$200.00, as and for money had and received for the use of the appellee, to his damage, etc. The issues were joined by general denial. Trial by the court resulted in a judgment for appellee in the sum of $197.71.
In the court below the sufficiency of the complaint was not challenged by a demurrer, but it is called in question, for the first time on appeal, by the assignment of error that it does not state facts sufficient to constitute a cause of action. It is insisted with great earnestness that the complaint omits the averment of
The material fact which appellant claims was necessary to aver, and essential to appellee’s recovery, is that the complaint fails to allege any contract conferring upon appellee the right to recover the premiums paid by him, in full. It is clearly apparent, from the averments of the complaint, that, up to a certain date, appellee paid all premiums on his several policies as they matured. On July 20,1895, when he tendered another payment, and all that was then due, the same was refused, and his policies declared forfeited; and upon these facts he charges in his complaint a cancelation or forfeiture of valid, existing .policies, and seeks to recover the full amount of premiums paid, without averring that his contract of insurance gave him this right. As to whether the policies contain a provision for the return of the premium, in case they are canceled, we are not advised, as a matter of fact, for they are not made parts of the complaint by exhibit, and there is no such averment in the complaint; but, in the absence of such averment and the policies, we must assume that they contain no such provision. Conceding that the fault, if any, of the cancelation of the policies, was appellant’s, and that the appellee performed all the conditions of his several contracts, the question pre
There seems to be a well defined distinction between cases where the risk has attached and where it has not attached. In the latter case, all the premiums must be returned, and an action will lie for their recovery. Hawke v. Niagara District, etc., Ins. Co., 23 Grant Ch. (Can.) 139; Jones v. Insurance Co., 90 Tenn. 604, 18 S. W. 260, 25 Am. St. 706; Joliffe v. Madison, etc., Ins. Co., 39 Wis. 111, 117, 20 Am. Rep. 35; Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, 21 Am. St. 203; Tyrie v. Fletcher, Cowp. 668; Stevenson v. Snow, 3 Burr. 1237; Waters v. Allen, 5 Hill (N. Y.) 421;
“Certainly not the whole of the premium, and none unless it can be properly divided, and.a part of the risk, as in some sea usages, can be considered as never having been incurred.” In Phenix Ins. Co. v. Tomlinson, 125 Ind. 84, the court by Elliott, J., said: “The moment the risk attached the premium paid was beyond recovery by the insured. * * * His right is correspondent to his burden; he cannot get his money back but he can enforce his contract.”
The complaint ¿vers that “the said defendant still illegally and wrongfully retains and withholds from this plaintiff the aforesaid sum of money paid by him to said defendant as premiums upon said policies of insurance. And demand has been made by the plaintiff for the return to him of all of said premiums by it collected from said plaintiff, yet said defendant refuses and neglects to repay the same.” From the whole complaint it is evident that the theory upon which it is drawn is for the recovery of money paid by appellee to appellant as premiums upon certain insurance policies.
In Continental Life Ins. Co. v. Houser, 111 Ind. 266, which was a second appeal, the court said: “There is no evidence in the record of this cause, as now presented, which proves, or tends to prove, that appellant ever had and received any money, for the use and benefit of appellee, upon any account other than premiums paid upon a valid risk assumed by appellant upon the life of Louise Hesse. Under the law of this case, as declared by this court on the' former appeal herein, such premiums so paid cannot be recovered back from the appellant as for money had and received.”
“There is no averment of performance of the conditions of the contract on the part of the assured; nor, indeed, is there any statement of the terms or conditions of the contract. For anything that appears, the appellant may have had an undoubted right to forfeit the policy. * * * * Where a plaintiff grounds a right of action upon a breach of such a contract, he must show performance on his part and a wrongful refusal or failure to perform on the part of his adversary. It is not enough to show nonperformance, for there may be nonperformance without a breach. In order to make a good complaint in such an action as this, the plaintiff must show the terms and conditions of the contract, performance on his part, and a failure or refusal to perform on the part of the other party, constituting a breach of the contract. There is nothing in the complaint before us showing that the refusal to perform was not fully justified by the terms of the policy.
“The policy was valid in its inception, and there
In line with the case from which we have just quoted is Day v. Connecticut, etc., Ins. Co., 45 Conn. 480. In Continental Life Ins. Co. v. Houser, supra, the court suggests, but does not assume to decide, that the appellee might have had some other remedy. That the appellee in this case has a remedy, if he has been wronged by appellant’s acts, and he has performed all the conditions of the contract of insurance on his part, there can be no doubt.
Where a life policy has been duly issued, and is wrongfully canceled by the insurer, the insured may sue and recover for the present value of the policy, or he may tender the premiums as they became due, and recover the full amount of the policy on the death of the insured, or he may proceed in equity, and have a decree sustaining and declaring valid the contract of insurance. Day v. Connecticut, etc., Ins. Co., supra; Brooklyn, etc., Ins. Co. v. Week, 9 Ill. App. 358; Clemmitt v. New York Life Ins. Co., 76 Va. 355.
In Standley v. Northwestern, etc., Ins. Co., 95 Ind. 254, the court said: “If a policy is valid in its inception, then the company cannot be required to refund the premiums received, although it may subsequently
The complaint, in our judgment, does not state facts sufficient to constitute a cause of action. The record presents, and counsel have argued other questions; but as the complaint does not state a cause of action, it is unnecessary for us to consider them. Judgment reversed.