33 Ind. App. 309 | Ind. Ct. App. | 1903
Roby, J.
On January 20, 1893, the appellant insurance company issued a policy upon the life of Thomas B. Loughmiller for $1,000, upon the twenty-payment life plan, in consideration of the payment of the annual premium of $34.22 during said twenty years; appellee, wife of the insured, being named as beneficiary therein. The policy contained provisions as follows:
“In consideration of the statements made in the, application for this policy, which application is hereby made a part of this contract, and of the annual payment of the sum of $34.22, at the home office of the company, on or before tho*311 15th day of January at noon in every year during the term of twenty years from date hereof and of the payment when due of any and all notes given for premiums or parts of same. * * * After three years’ premiums shall have been paid, except in case of failure to pay at maturity a note given for premium, the company will, upon legal surrender of this contract while in force, issue a paid-up, nonparticipating life policy for the amount named in table A on the following page; and if not surrendered, in such case, then this policy shall, without surrender, become a paid-up, term policy, without change of conditions and agreements, except as to the payment of premiums, and continue in force for such time as named in table C on the following page, at the end of which time their contract shall cease. In case the insured dies while the said term policy is in force the amount of foreborne premiums, with- annual interest at six per cent., shall be deducted from the sum insured. * * * Conditions and Agreements: * * * Second. The failure to pay any of the first three annual premiums or notes, or interest upon notes given to the company for any of said premiums, on or before the days upon which they become due, at the office of the company in the city of Cincinnati or to the authorized agent on producing a receipt therefor signed by the president, vice-president, or secretary (and in case of the payment of a note upon the surrender of said note), shall avoid and nullify this policy, without action on the part of the company,' or notice to the insured or beneficiary, and all payments made upon said policy shall be deemed earned as premium during its currency. Third. Any and all notes which may be given for premiums on this policy, with their conditions, are hereby made a part of this contract of insurance.”
The first and second premiums were paid when due. When the third premium became due the assured executed his note therefor, payable nine months after date, which was accepted by appellant. When this note became due he
The appellant filed no denial to the complaint, and claimed that it had the burden of the issue, and the resulting right to open and close both the evidence and the argument. The court held otherwise. The correctness of its holding is the first question for decision.
That the nonpayment of the second note' at maturity
In suit on an insurance policy it is ordinarily sufficient to aver the issuance of the policy and the death of the assured. Nonpayment of premium or other default relied upon being matter of defense. Supreme Lodge v. Johnson, 78 Ind. 110; Phœnix Ins. Co. v. Stark, 120 Ind. 444. Appellee, however, counted upon a condition of the policy continuing the insurance in force for a definite period, notwithstanding nonpayment of the regular premium. In order to bring herself within the terms of the condition and contract, she has averred that the first three premiums were paid. The contact, by it’s own clear stipulation, becomes a paid-up term policy for the time stipulated in table 0 after, and only after, the payment of three years’ premiums, and of all notes given therefor. The payment of the first three premiums, or an agreement for credit, is therefore a condition precedent to the policy becoming a paid-up term policy. 19 Am. & Eng. Ency. Law (2d ed.), 81; Kinne v. Michigan, etc., Ins. Co., 92 Wis. 335, 66 N. W. 359; Moses v. Brooklyn Life Ins. Co., 50 Ga. 196; Wells v. Vermont Life Ins. Co., 28 Ind. App. 620; Meyer v. Manhattan Life Ins. Co., 144 Ind. 439.
It appears that it was not the intention that the notes given should be considered payment of the premium, changing the policy to a paid-up term policy without regard to their payment. Pitt v. Berkshire Life Ins. Co., 100 Mass. 500; Curtis v. Hubbard, 9 Met. (Mass.) 322. If the transaction were shown to have amounted to a loan, to evidence which notes were given, the rule would be different. Northwestern, etc., Ins. Co. v. Little, 56 Ind. 504; Insurance Co. v. Dutcher, 95 U. S. 269, 24 L. Ed. 410; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7, 17; Kline v. National Benefit Assn., 111 Ind. 462, 60 Am. Rep. 703. Ap
A further reason for a new trial is on account of newly discovered evidence. Affidavits accompanying the motion set out the evidence. It is to the effect that a building in Indianapolis, formerly known as the “Vance Block,” was undergoing repairs and being remodeled, and that on July 1, 1894, John S. Lambert, appellant’s agent, had vacated his office in said building, and did not return to it until November 1, 1897; that on January 11, 1896, said Lambert Was at Liberty, Indiana, where he resided, and not in Indianapolis at all; that he purchased a draft at the bank in Liberty on that day, wrote a letter from said town, and received a letter from his clerk at Indianapolis; that his office was at that time in room 260 of the Denison Hotel. The affidavits as to such facts are made by disinterested persons, and appear conclusive as to their existence.
The controversy at the trial was narrowed down to the single question of whether the $20 note last given had been paid. Appellee produced a witness who testified that he received the money from Loughmiller, carried it to Indianapolis, and paid it to Lambert, to whom said note had been indorsed for collection; that 'Lambertotold him the note was at Liberty, and that he would mail it to him. No receipt was given, and the note was not surrendered. Lambert, as a witness, denied that payment had been made to him by anyone. Appellee’s witness testified that payment was made at Lambert’s office in the Vance Block on January 11, 1896. The relevancy of the newly discovered evidence is apparent. Two objections are made to a new' trial being granted on account of it: -(1) That it is cumulative; (2) that diligence is not shown. “Cumulative evidence is evidence of the same kind, to the same point. Thus, if a fact is attempted to be proved by the verbal
The witness McCay testified to making payment of the note to Lambert at the time and place stated. Lambert testified that no such payment was made at any time or place. The evidence exhibited by the affidavits tended to the same conclusion as did the testimony of Lambert, but it is not of the same class. It tends to prove the same fact as did evidence introduced, but no evidence was introduced tending to show that payment could not have been so made by reason of the nonexistence of the place at which it was said to have been made. The offered evidence is not, therefore, regarded as cumulative in the sense that prevents a new trial on account of its discovery. It tends to prove the same facts, but in a materially different way. Hines v. Driver, supra; Rains v. Ballow, 54 Ind. 79; Humphreys v. Klick, 49 Ind. 189; Humphries v. Marshall, 12 Ind. 609; Kochel v. Bartlett, 88 Ind. 237; Cooper v. Ellis, 3 Ind. App. 142; Blackburn v. Crowder, 110 Ind. 127.
The witness Lambert was the general agent of the appellant company in Indiana. Notice to him was notice to appellant. He was a witness and failed to testify relative to the whereabouts of his office or himself on the day named. The excuse given therefor is that he was taken by surprise by the testimony of McCay, and was not prepared to testify other than that he had not been paid the amount of said note; that after returning home he consulted his papers and memorandum, with the result stated.
Appellee’s attorneys declined to advise appellant’s attorneys prior to the trial as to the details of the payment claimed, other than that it had been made to a duly authorized agent of the company. Thereafter interrogatories were submitted to appellee, the answers to which disclosed the plaintiff’s claim to be that said note was paid oh or about January 11, 1896, at Indianapolis, Indiana; that
Judgment affirmed.