77 Ind. App. 34 | Ind. Ct. App. | 1921
Action by appellant against appellee to recover upon a policy of insurance for $2,000, .issued by appellee upon the life of William A. Painter, the deceased husband of appellant, who was, subsequent to the issuance of said policy, made the beneficiary under said policy. Liability upon said policy is denied by the appellee upon the ground that the same had been lapsed or forfeited by' failure to make timely payment of the premium due thereon, and that subsequent to the death of the insured, appellee paid appellant $149.24 in complete discharge and settlement of all its obligations under said policy, and that said amount was accepted by appellant in full satisfaction of said policy. Appellee answered the complaint in three paragraphs, the first a general denial, the second alleging payment, and the third alleging the payment to appellant of the said sum of $149.24 in full discharge and satisfaction of appellee’s
Appellant, in her assignment of errors, presents alleged error of the court in overruling appellant’s demurrer to appellee’s third paragraph of answer, and error of the court in sustaining the appellee’s separate and several demurrers to the second, third, fourth, fifth, sixth and seventh paragraphs of reply, and in sustaining said demurrer to each of said paragraphs separately and severally. Said third paragraph of answer, so far as here involved, avers that, among other things, the insured agreed in his application for insurance that the insurance applied for should not be in force until the acceptance and approval of his application by the company at its home office, the delivery of the policy and the payment of the first premium as required therein,
“Springfield, Mass., September 5, 1913.
“Received of the Massachusetts Mutual Life Insurance Company. One Hundred Forty-Nine and 24/100 Dollars in full for all claims arising under Policy No. 227345 in said company, .now terminated by the death of William A. Painter.
“Laura B. Painter.”
In Home Ins. Co. v. Howard (1887), 111 Ind. 544, 546, 13 N. E. 103, the court, in holding that a suit could not be maintained on a policy-where there had been a settlement and the insured had given a receipt similar to the one given by appellant, said: “The action being at law to recover upon the policy as a subsisting obligation, it follows inevitably that the contract of settlement and cancellation above set out, 'not- being void, constitutes an insuperable barrier against a recovery so long as it is not rescinded or avoided by an offer to return the consideration paid for it. The case is not distinguishable from Brown v. Hartford Fire Ins. Co., 117 Mass. 479.” Another case to the same effect is the Norwich Union Fire Ins. Society v. Girton (1890), 124 Ind. 217; 222, 24 N. E. 984, where the court held:
*42 “Though there may have been fraud on the part of the appellant, in obtaining the settlement, while the settlement stands unrescinded, no action can be maintained on the policy. Appellee can not retain the benefit of the compromise and sue on the original contract. He must, at least, rescind or offer to rescind, and tender back the money received on the contract of settlement before he can bring suit on the policy. He can not ignore the settlement and bring suit on the policy.”
To the same effect see Supreme Council, etc. v. Apman (1907), 39 Ind. App. 670, 80 N. E. 640. Each of the foregoing cases involved an element of fraud in the settlement, while in the instant case no claim is made that the settlement was procured by fraud.
There was no error in overruling appellant’s demurrer to the second paragraph of answer. There was no error in sustaining appellee’s respective demurrers to the second, third, fourth, fifth, sixth and seventh paragraphs of reply.
The judgment is affirmed.