81 Ind. 300 | Ind. | 1882
The complaint of the appellant is in three paragraphs. The first alleges that the appellee issued a policy of insurance upon the life of Leander E. Willeuts, the appellant’s husband; that, at and prior to the time the policy was issued, the insured was appellee’s examining physician for
The second paragraph is much like the first. In one material particular, there is a difference between the two. The former paragraph, instead of charging that an express agreement was made for the application of the fees of the insured to the payment of the premium, alleges that, by a custom acquiesced in by him and the company, they were to be so applied.
The third paragraph, in many inspects, is similar to the first and second, but, omitting all reference to the agreement and custom concerning fees, alleges that a part of the premium was paid in money, and that, as the company was a mutual one and the insured a member, the beneficiary was entitled to a proportionate part of the insurance, although a part only of the premium was paid.
It is to be observed of all the paragraphs of the complaint, that they make due averments of death, proof of death, and kindred matters.
We have only outlined the complaint, and deem it unnecessary to give even a brief synopsis of the appellee’s answer,
There are principles applicable to demurrers to evidence, which it is well to state at the outset:
First. A demurrer to the evidence admits all facts of which there is any evidence, and all inferences which can be logically and reasonably drawn from the evidence. Fritz v. Clark, 80 Ind. 591; The Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261; Miller v. Porter, 71 Ind. 521; Newhouse v. Clark, 60 Ind. 172; Eagan v. Downing, 55 Ind. 65; Andrews v. Hammond, 8 Blackf. 540; McCreary v. Fike, 2 Blackf. 374; Buller N. P. 313.
Second. All reasonable and natural inferences which may be drawn from the evidence are admitted, but forced and unnatural ones are not. In speaking of a party who had demurred to the evidence, Marshall,C. J., said: “Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw.” Pawling v. The United States, 4 Cranch, 219. In a note to 2 Tidd’s Pr. 865, this passage is quoted : “ The court will also, on the argument of the demurrer, make every inference of fact in favour of the party * * * which the jury might with the least degree of propriety have inferred; but they ought not to make forced inferences.” 1 Trou. & Haley’s Pr. 509.
Third. In considering the evidence demurred to, the courts will not weigh it to determine whether a fact, of which there is any evidence, has or has not been proved, nor will they consider such evidence as is favorable to the demurring party, if there be any opposing evidence. In the book referred to, it is said: “ So, if the evidence conflict, the party demurring must admit that of his adversary to be true so far as it conflicts with his own. So, if the plaintiff call several witnesses
We are satisfied that the evidence does not make out a case under either the second or third paragraphs of the complaint. We find no difficulty at all in holding that the evidence is wholly insufficient under either of the paragraph named; the «only difficult questions are such as arise under the first paragraph. A clearer view can be presented, and brevity attained, by disposing of the case viewed with reference to the last two paragraphs of the complaint.
A custom can not be inferred from a single act. It would be a strained and violent inference which would lead to the ■conclusion from one act alone, that a custom existed. The only evidence in support of the custom alleged in the second paragraph is, that at the time the policy was written, the fees of Dr. Willcuts and those of another physician, which had been transferred to him, were accepted in part payment of the first premium. A single transaction, occurring at the very threshold of the dealings between parties who have put their contract in writing, can not be deemed proof of a custom. The single instance proved does not in any degree tend to warrant the inference that the appellee agreed to employ Dr. Willcuts permanently, and allow him to pay the premiums in services. 'The mere fact that he was allowed to make use of his own claim of three dollars, and that of his assignor for a like sum in payment, does not authorize the intendment, as against the
The written contract of the parties, in very explicit terms, makes the payment of all premiums at the designated times a condition precedent to the right to the insurance. It is express! y provided that in case default is made after the payment of three or more annual premiums, a paid-up or nonparticipating policy will be issued for an amount calculated in accordance with the tables used by the company. It is also stipulated: “ If the said premium shall not be paid on or before the days above mentioned for the payment thereof, then, and in every such case, this policy shall cease and determine, and no premium on this policy shall be considered paid unless a receipt shall be given therefor, signed by the president and secretary, and the payment and receipt of any premium less than a full annual shall not have the effect to continue this policy in force longer than three months in case of a quarterly payment, or six months in case of a semi-annual payment.” It is further provided that a consideration of the ■contract is the payment in cash of the semi-annual premium of eleven and twenty-four hundredths dollars before noon on or before the 27th day of February and August in each year. If it were conceded that the evidence warrants the inference that the sum of three dollars due the insured for services as medical examiner was accepted in payment, it would not entitle the beneficiary to recover a proportionate share of the insurance. The rights of the parties are fixed and defined by the written contract, and unless there is a new contract made modifying or abrogating the original, it must control. We know of no case applying to such a policy of insurance as that under consideration the rule that where services are performed under an express contract, their reasonable value can be recovered under a quantum valebat, although there is not a full performance. The case of Manhattan L. Ins. CVo.
If there had been a new and distinct contract, abrogating or modifying the old, it would be different. We do not doubt that a contract may be modified, or even abrogated, by parol; but there is not a spark of evidence tending to show that this contract was so modified as to entitle the beneficiary to a proportionate part of the insurance upon the payment of a part of the premium.
We come now to the questions which arise when the case is viewed under the first paragraph of the complaint.
It is now proper to refer to other stipulations of the policy than those already examined. Endorsed on the policy, in a conspicuous place, is this: “ Agents having the receipts, and then only, will receive the premiums when due or before; but agents are not authorized to waive forfeitures, to make, alter or discharge contracts; and no receipt will be binding on the company, unless signed by one of its officers, and countersigned
The doctrine of waiver is liberally administered where the thing claimed to have been waived is not of a very material character.. Whether the company in the present instance received money or medical services equal in value to the amount of the premium, was not material. Payment may be made in whatever thing of value the parties may agree to accept as payment. Louden v. Birt, 4 Ind. 566. Whether payment was made, or was to be made, in medical services or in money, was not the material matter. The essential thing was not the medium of jDayment, but the value of the thing given or done as payment. We have before us, therefore, a case where the doctrine of waiver should be liberally applied in order to avert a forfeiture.
It is settled that a waiver of a condition of a policy can only be made by an agent possessing competent authority. Franklin Life Ins. Co. v. Sefton, 53 Ind. 380. We think the case cited must be regarded as declaring that a mere local agent of an insurance company can not waive any of the material conditions written in the policy.
First. Lenfestey was appellee’s local agent at Marion, in this State; Dr. Willcuts, the insured, was the medical examiner, and paid the first premium in the manner heretofore described. Before the second became due, he had earned three dollars as medical examiner. Lenfestey, in his testimony, said, in speaking of this matter: “ On the day it fell due, I asked him to pay the premium on the policy; don’t remember of any particular claim being spoken of at the time; something was said about the premium; that the difference between the amount due him and the amount due on the policy was $8.39.” This witness also said, that he told Dr. Willcuts he would write to the general district agent on the subject; that he did write, and received an answer, which, omitting formal parts and signatures, reads as follows: “ I did not pay Dr. Willcuts for the examination of S. P. Eversale, as he wanted the examination to apply on his premium.” Taking all the evidence into consideration, and applying the rule that all reasonable intendments must be made in favor of the party whose evidence is demurred to, it must be held that there was a waiver of money payment to the extent of three dollars. It is true that there are some portions of the evidence which are in appellee’s favor, and tend strongly to show that there was no waiver, but the course pursued precludes us from weighing the evidence, and, indeed, from doing anything more than considering that which is favorable to the appellant.
Second. We are constrained to the opinion that the second of the questions stated must be answered against the appellee. It appears from the evidence that the appellee is a foreign insurance company; that H. C. Martin was its agent for the northern district of Indiana; that within the territory assigned he was its principal agent, and that he had no superior officer
Assuming, as we must, that there was a waiver; that it was made by the authorized agent of the company; that the three dollars due the insured for the examination of the applicant, Eversale, was a payment on the August premium, what are the rights of the insurer and beneficiary? The question which faces us is not free from difficulty. The sum due Dr. Willcuts did not pay the premium, and there is no evidence from which it can be inferred that he paid, or offered to pay, the remainder of the premium. By stretching the rule that intendments are all against, and strongly against, one who demurs to his adversary’s evidence, to its utmost tension, it may be inferred that the insured understood and intended that the sum should be applied to the payment of the premium, and that the company’s agent joined him in this; but the rule can not be extended far enough to allow the inference that there was payment, or offer of payment, of anything more.
Appellant’s counsel offer two theories in support of their contention that the evidence justified a recovery, although no
AYe unhesitatingly assent to the proposition that where parties have, by their own acts, placed a construction upon a contract, the courts will adopt and enforce the contract as thus construed. Reissner v. Oxley, 80 Ind. 580; Johnson v. Gibson, 78 Ind. 282; Aimen v. Hardin, 60 Ind. 119; Insurance
The second of the theories, by which appellant seeks to-escape the difficulty caused by the failure to pay or tender the-amount of the premium in excess of the value of the services-of Dr. Willcuts, is, that the act of the company excused performance.
The law unquestionably is, that, if performance is prevented by the act of one of two contracting parties, the other is excused from tendering performance. So, too, if one party avows-an intention not to perform, it will, in most cases, excuse the-other from offering to perform his part of the contract. Ruble v. Massey, 2 Ind. 636; Turner v. Parry, 27 Ind. 163; Phœnix,, etc., Ins. Co. v. Hinesley, supra. An insurance company, by demanding more than it is entitled to receive, and notifying the insured that nothing but a compliance with the demand will be deemed performance, will excuse the latter from tendering the premium. May Insurance, 2d ed., section 358. To state the general rule is easy enough; but to always properly apply it, is a perplexing and difficult task.
The single fact which appellant relies on to show that performance on the part of the insured was excused is, that on the first day of July, 1878, a notice was issued by the company, and a week or two after its issue served on Dr. Will-cuts. The notice, omitting heading and signature, is as follows : “ The second S. A. premium of $11.39, on your policy No. 95,594, falls due at the office of the company in Marion, Indiana, before noon on the 27th day of August, 1878. The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglect
The case of Phœnix, etc., Ins. Co. v. Hinesley, supra, is essentially unlike the present upon the point under immediate dis
The solitary fact favorable to the appellant, if it can be said to be favorable, is'this notice. The testimony of Lenfestey, the local agent, indicates very strongly that the insured desired not to apply on the premium the three dollars due him for services, but desired that it should be paid to him. "We quote from the testimony of this witness: “In the conversation I had with him” (the insured), “he said there -was three dollars due him, and asked who was to pay it; don’t think he said what he wanted to do with it; I told him I would write to Dr. Martin about it; I don’t call to mind which of us said there wras $8.39 after the payment of the $3; it was prior to that he asked who would pay the $3.” This conversation took place three or four weeks before the time the premium became due. Whether this testimony does,
The judgment must be affirmed.