Western & Southern Life Ins. Co. v. Lottes

• Decision Date: 14 January 1946
• Docket Number: 17424.
• Citation: 64 N.E.2d 405,116 Ind.App. 559
• Court: Indiana Appellate Court
• Parties: WESTERN & SOUTHERN LIFE INS. CO. et al. v. LOTTES.

64 N.E.2d 405

116 Ind.App. 559

WESTERN & SOUTHERN LIFE INS. CO. et al. v. LOTTES.

No. 17424.

Appellate Court of Indiana, in Banc.

January 14, 1946

Appeal from Dubois Circuit Court; Eldo W. Wood, Judge.

See also, Ind.App. 63 N.E.2d 146.

Hatfield, Meyer, Fine & Hatfield, of Evansville, for appellants.

Louis A. Savage, of Jasper, and John R. Ax, of Huntingburg, for appellee.

HAMILTON, Judge.

This is an appeal from a final judgment rendered in an action instituted by appellee against the appellants. The complaint was in two paragraphs. The first paragraph sought recovery on the basis of an alleged oral agreement and contract of insurance alleged to have been entered into on August 6, 1941, between appellants and one Gilbert P. Lottes, deceased, husband of appellee, whereby appellants agreed to insure the life of said Gilbert P. Lottes, with appellee named as the beneficiary. The second paragraph of complaint sought recovery against both appellants upon the basis of a written application for insurance signed by the said Gilbert P Lottes on August 6, 1941, and a receipt for the first quarterly premium due on said policy of insurance. Recovery was sought against appellant, Lee M. Potts, as agent of The Western and Southern Life Insurance Company, and against the latter appellant on the theory that it was bound by the acts of its agent, Lee M. Potts, and by the terms and provisions of the written application and receipt which provided that the insurance applied for would be in full force and effect from the date of the execution of the application and the payment in full of the first quarterly premium on the policy of insurance applied for until such time as said appellant insurance company either accepted or rejected said application within a period of 45 days. The second paragraph of complaint alleged that the insured, Gilbert P. Lottes paid to Lee M. Potts, agent of the appellant insurance company, the sum of $6 in full payment of the first quarterly premium on the policy of insurance applied for in the application. The second paragraph of complaint further alleged that the said Gilbert P. Lottes was accidentally killed on August 9, 1941, without said application for insurance having been either accepted or rejected by the appellant insurance company and without a policy of insurance having been issued.

Issues were formed by appellants' filing separate and several paragraphs of answer admitting certain allegations contained in each paragraph of complaint and denying other allegations.

The cause was submitted for trial to a jury which rendered a general verdict for the appellee and against both appellants in the sum of $2500.

Thereafter the appellants filed separate and several motions for a judgment in their favor on the pleadings, notwithstanding the verdict of the jury, based upon the following premises: (a) That neither paragraph of complaint stated a cause of action against the defendants or either of them; and (b) that the evidence was insufficient to sustain the material allegations in either paragraph of complaint. This motion was overruled and judgment rendered in favor of appellee and against both appellants upon the verdict of the jury.

The appellants filed separate and several motions for a new trial alleging the following grounds, to wit: (1) That the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict of the jury is contrary to law; (3) that there is error in the assessment of the amount of recovery in that the assessment is too high; and (4) that the court erred in refusing to give to the jury at the conclusion of all the evidence a peremptory instruction to render a verdict for each defendant. The motions for a new trial were overruled and this appeal perfected.

The errors assigned in this court are: (1) That the court erred in overruling the separate and several motions of each appellant for judgment on the pleadings in their favor notwithstanding the general verdict of the jury; and (2) that the court erred in overruling the separate and several motions of each appellant for a new trial.

Appellants' first assignment of error is based upon § 2-2503, Burns' 1933,§ 375, Baldwin's 1934, enacted in 1881, which reads:

'When upon the statements in the pleadings, one party is by law entitled to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.'

In 1911 the legislature amended § 2-1007, Burns' 1933, § 111, Baldwin's 1934, so that it now provides that a defendant may file a demurrer to the plaintiff's complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action, which demurrer shall be accompanied by a memorandum stating wherein the complaint is insufficient for want of facts, and the party so demurring shall be deemed to have waived his right thereafter to question the sufficiency of the complaint for any defect not specified in the memorandum.

The record in the instant case discloses that neither appellant filed a demurrer to appellee's complaint as provided in § 2-1007, supra. Therefore we hold that appellants waived any question as to the sufficiency of either paragraph of the complaint to state a cause of action and that the trial court did not err in overruling the separate and several motions of appellants for judgment in their favor upon the pleadings, notwithstanding the general verdict of the jury. Calumet Teaming & Trucking Co. v. Young, 1941, 218 Ind. 468, 472, 33 N.E.2d 109, 583; Pittsburgh, etc., R. Co. v. Boys, 1919, 71 Ind.App. 102, 111, 123 N.E. 482.

The appellants' second assignment of error to the effect that the trial court erred in overruling the separate and several motion for a new trial based upon the grounds that the verdict of the jury is not sustained by sufficient evidence and is contrary to law requires that we review the evidence most favorable to appellee.

An examination of the record discloses evidence from which the jury were justified in finding the following facts to have been established by the evidence: That on and prior to August 6, 1941, the appellant, The Western and Southern Life Insurance Company, a corporation, was duly licensed by the State of Indiana to engage in the business of selling life insurance policies in the State of Indiana and was so engaged in the selling of life insurance policies in Dubois County Indiana, by and through its agents, one of whom was the appellant, Lee M. Potts; that Gilbert P. Lottes, a resident of Jasper, Dubois County, Indiana, was employed as a salesman in the store of the Himsel Implement Company, Jasper, Indiana; that appellant Lee M. Potts was a resident of Dubois County, Indiana, and engaged in the business of selling and soliciting applications for life insurance policies as a general agent of the appellant, The Western and Southern Life Insurance Company, in Dubois County, Indiana; that as such agent, he was authorized and empowered to solicit applications for life insurance, collect and receive payments of premiums on such applications, execute and deliver receipts for payments of premiums made to him as the agent of the appellant insurance company; that on August 5, 1941, the said Lee M. Potts entered the storeroom of the Himsel Implement Company in Jasper in order to purchase a Frigidaire; that he talked to Gilbert P. Lottes about buying a Frigidaire and upon learning the price thereof said to Lottes that the Frigidaire was too high; that Lottes then stated to Potts that he, Lottes, had been thinking about taking out insurance and that, if he, Potts, would buy the Frigidaire, he, Lottes, would buy a policy of insurance from Potts; that Potts agreed to Lottes' proposition and thereupon produced a blank application for insurance and requested Lottes to sign the same, which Lottes did. Lottes then paid to Potts a sum of money in cash to be applied upon the payment of the first quarterly premium of said insurance policy; that the full amount of the first quarterly premium on said policy was $6.53. Potts retained the sum of $1 from the amount of money which he had received and then gave Lottes the balance thereof to be applied upon the purchase price of the Frigidaire, which Potts had agreed to buy. The application for insurance was signed by Lottes on August 5, 1941, and Potts, as agent for the appellant, The Western and Southern Life Insurance Company, accepted the money paid to him by Lottes as a payment on the first quarterly premium due on the policy of insurance purchased on said date. At the time that Lottes gave Potts the money as payment on the premium on the policy of insurance, Potts told Lottes that he would fill out and give him a receipt for the money but Lottes stated to Potts at that time that he, Lottes, was in a hurry and did not have time to wait for the receipt. After Lottes signed the application for insurance on August 5 and paid Potts the money thereon, as heretofore stated, Potts took the application for insurance, which had a blank receipt attached thereto, with him and went to the office of the appellant insurance company at Huntingburg, Dubois County, Indiana, where he, Potts, completed writing in the blank spaces on the application for insurance on August 6, 1941, and then after he had detached the receipt part of the application, he delivered the application for insurance which had been signed by Lottes on August 5, 1941, to appellant insurance company's superintendent in charge of said appellant's office at Huntingburg, Indiana, who approved the application on August 6, 1941, and then forwarded the same to the appellant insurance company's office at Evansville, Indiana, for approval and to be then forwarded to the home office. The...