34 Ind. App. 531 | Ind. Ct. App. | 1905
Action by appellant as administrator of the estate of Katie Ling, formerly Rutherford, upon two policies of life insurance issued by the appellee company. The complaint was in two paragraphs, each based upon a separate policy. Demurrers for want of facts were sustained to them, and appellant refused to plead further. Judgment was rendered for appellee because of such refusal, and error in sustaining said demurrers is assigned for reversal.
Both policies were issued on April 26, 1897, and are identical so far as the questions presented by this appeal are concerned, so that a consideration of one paragraph of complaint and the exhibit filed therewith is decisive as to both.
The terms of the policies are in part as follows: “Incor
It is averred that the plaintiff is the duly qualified and acting administrator; that defendant is a corporation organized and acting under the laws of the state of New Jersey, and doing business in Indiana and Kentucky; that on said 26th day of July, in consideration of a premium to be paid at intervals, equivalent to five- cents per week, during the life of assured, defendant issued its policy of insurance upon her life, in writing, in the sum of $94, to the decedent, whose name at that time was Katie Rutherford; “that by agreement with defendant, through its agents, said Katie Ling was to and did pay a premium on this policy in the sum of twenty-five cents every five weeks, at which times the agent of defendant hunted her up and made demand for such payment, and this mode of payment had become and was and is now the custom with the defendant on this policy and similar policies of defendant. On the — day of February, 1901, one Cummings, an agent of defendánt, who had been collecting premiums from said assured, called upon the assured at the place where she was staying, near the city of Owensboro, Kentucky, for her premium, at which time assured paid to said Cummings the entire amount then due
The policy set out contains an agreement to pay the sum insured to the legal representatives of the assured “unless settlement shall be made under the provisions of article two on the back hereof.” Under the .provisions of article two the company had the right to pay such sum to any relative by blood or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same. It thus appears that the appellee company by contract claimed the right to administer upon the estate of the assured, to sit in judgment upon the “equity” of those who might have claims against her; binding itself only to pay the sum insured to her administrator'in event that it had not sooner made distribution according to its own ideas. The decedent’s right to pay premiums is clearly provided for in this somewhat remarkable contract, and the appellee insurance company now asserts, in support of the ruling of the trial court upon its demurrer to the complaint, that the policy is forfeited on account of nonpayment thereof.
The principle is clearly stated in a standard text-book as follows: “Forfeitures are SO' odious in law that they will be enforced only where there is the clearest evidence that such was the intention of the parties. If the practice of the company and its course of dealings with the insured and others known to the insured have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted on, the company will not be allowed to set up such forfeiture, as against one in whom their conduct has induced such belief.” 2 May, Insurance (4th ed.), §361. Van Camp Packing Co. v. Hartman (1890), 126 Ind. 177.
The judgment is reversed and the cause remanded, with' instructions to overrule the demurrers to the first and second paragraphs of complaint, and for further proceedings not inconsistent herewith.