31 Ind. App. 153 | Ind. Ct. App. | 1903
Appellant prosecutes this action to recover back the premiums and assessments paid by his decedent on four policies of insurance issued by the appellee on the lives of four certain persons, named in the policies, in each of which policies one Cyrus Eerris was designated as beneficiary. Eerris assigned the policies to appellant’s decedent.
It is alleged in the first paragraph of the complaint that the policies were all void, for the reason that they were issued without the knowledge of" the assured; that neither Eerris nor Elias E. Thornton,, the decedent, had an insurable interest in the lives of the insured, nor had either of them the written consent of the assured, authorizing them, or either of them, to pay the premium assessments on the policies. It is further averred that Thornton was a farmer, unused to business, illiterate, unable to read and write
The facts found by the court were substantially as follows : The American Mutual Life Insurance Company is a corporation organized under the laws of the State of Indiana and is engaged in the business of life insurance on what is known as the assessment plan. Its principal office is at Elkhart. On the 30th day o£ October, 1886, said company issued to one Cyrus Eerris a certificate of life insurance upon the life of one Jacob Gaylor, and said Eerris on the 16th day of April, '1887, assigned said certificate of insurance to appellant’s decedent, Elias E. Thorn
The facts found completely refute the averments of the complaint that Thornton was induced by conspiracy, fraud, and misrepresentation to enter into the arrangement concerning the policies of insurance. On the other hand it is shown that Thornton induced Ferris, who was neither an officer nor agent of the insurance company, to take out the policies, and assign them to him. Thornton arranged, carried out, and expended his money upon an unlawful scheme with which he was thoroughly acquainted. He knew that the policies were void ab initio, and knew the facts which caused them to be void. He knowingly secured the policies upon the lives of persons without their knowledge or consent. This, under our statute, is a felony. §4905 Burns 1901.
There should be, and there is, a plain distinction between the cases wherein the policy is void ab Initio by reason of some defect in the contract, and cases of the character of the one at bar, wherein both public policy and the criminal law of the State were violated by the complaining party at the very outset.
Under the facts found, we think the trial court rightly concluded that appellant had not established the material averments of his complaint. The action having been defeated wholly by facts proved under the issue made by the complaint and general denial, the' other errors complained of are harmless.
Judgment affirmed.