39 Ind. App. 670 | Ind. Ct. App. | 1907
Action by appellee Apman. Trial by jury. Verdict for $645. Appellants motion for a new trial, overruled. Judgment on verdict.
The parties do not agree upon tbe construction of the complaint. Appellant asserts that it is founded upon a benefit certificate issued by it to Sarah Apman in the sum of $1,000, and payable upon her death to appellee Apman, who was her husband. Such certificate is designated in the pleading as a policy, and it is averred that a copy thereof is not filed with and not made a part of the single paragraph of complaint, for the reason that the original is in the possession of the appellant. Eull performance of the conditions of said certificate, the death of said member, and the furnishing of proofs thereof, are all averred, and in the absence of the additional averments hereafter referred to the action would very clearly be, as contended by appellant, an action upon the contract contained in the certificate. Appellee Apman, however, asserts that it sounds in tort, and seeks the recovery of damages on account of fraud. Following that part of the pleading which has already been summarized, it is averred,'.in effect, that at the time of his wife’s death said appellee was in straitened financial circumstances, and did not have either money or credit to meet his wife’s funeral expenses, and solicited John Brooks to guarantee the payment of such funeral expenses, and offered to secure him by an assignment of “the insurance policy sued upon herein;” that Brooks agreed to and did stand good for said funeral expenses, which amounted to $355, whereupon said appellee assigned said certificate to him as security for said sum; that shortly thereafter Kennedy, appellant’s supreme counselor, was sent by it to said appellee and Brooks for the ostensible purpose of effecting a settlement of appellant’s liability under said certificate; that when said officer learned of said assignment he notified Brooks that it would not be recognized by appellant, and further represented that if said appellee and Brooks
In the fourth paragraph it is admitted that appellee Ap-' man was beneficiary in a certain certificate of insurance, as averred in the complaint, but it is averred that after his wife’s death and prior to the institution of the action he made a written assignment of his interest therein to John Brooks —such assignment, in due form and acknowledged before a notary public, being set out; that at the time such assignment was made said Brooks agreed in writing to collect the amount due on said certificate, and, after paying the funeral expenses of said appellee’s wife, to pay the residue thereof to him. This contract is also incorporated in the answer. It is then averred that said Brooks insisted upon appellant’s paying the amount of said certificate to him; that it investigated the cause of the death of appellee Apman’s wife, and found that during the last few days that she was alive said appellee made violent threats that he would kill her; that he cursed and threatened her while she was sick in bed; that he struck and wounded her, and that his conduct toward her was such that her relatives, in order to prevent further violence from him, removed her from her home to that of her brother; that at the time of her death numerous bruises and wounds were found upon her body, caused by blows received from said appellee, and which were the prox
Demurrers for want of facts were overruled to these affirmative paragraphs of answer, and a reply of general denial filed. The court instructed the jury, at appellee Apman’s request, that “this suit is brought by Charles Apman against the Supreme Cormcil of Knights and Ladies of Columbia to recover damages which the plaintiff claims to have sustained by reason of the false and fraudulent representations of one Kennedy, the agent of said defendant society, in obtaining from the plaintiff a release, assignment, and settlement of an insurance policy, issued by said defendant society to said plaintiff’s wife, and made payable at her death to plaintiff, for a sum much less than the amount which was due and payable under the terms of the policy of insurance.” The court instructed the jury at appellant’s request, “that in order to avoid the contract of settlement, and compromise involved in this action on the ground of
In Gould v. Cayuga County Nat. Bank (1885), 99 N. Y. 333, 2 N. E. 16, the court said: “And here we may turn to the other branch of the argument, that the action is an attempt to recover under the mask of damages the extinguished balance of the original obligation. That is not the effort and such is not the true measure of damages. If it was, very much of the appellant’s argument would be difficult to answer. There having been no rescission of the compromise agreement, that must stand, and it discharges forever the original contract and extinguishes all right to any balance due upon it. In no form of action while the compromise stands can that balance be recovered. But because of that fact it does not follow that merely nominal damages resulted from the fraud. While their measure is not the extinguished balance, and cannot be without making the rule as to rescission an idle and useless formality, its measure is indemnity for the real loss sustained, which may very well prove to be less, and even much less than the contract balance. Such damages will compensate the fraud
Appellant’s counsel have referred us to testimony tending to show that appellee Apman was intoxicated at the time he executed the release. The transaction took place in the forenoon, but the entire testimony relative to his habits in that respect adds probability to the conclusion. Whether his normal condition was interfered with is not so certain. They have also presented a forceful argument as to the sufficiency of the evidence to sustain the finding of fraud. Such argument is based upon the assumed but unstated hypothesis that every one cognizant of the transaction was engaged in the carrying out of a conspiracy to defraud appellee Apman. The hypothesis is not warranted, and the argument, therefore, is inconclusive.
Judgment is reversed, and the cause remanded, with instruction to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent herewith.