American Income Ins. Co. v. Kindlesparker

• Decision Date: 14 November 1941
• Docket Number: 16630.
• Citation: 37 N.E.2d 304,110 Ind.App. 517
• Parties: AMERICAN INCOME INS. CO. v. KINDLESPARKER.
• Court: Indiana Appellate Court

37 N.E.2d 304

110 Ind.App. 517

AMERICAN INCOME INS. CO. v. KINDLESPARKER.

No. 16630.

Appellate Court of Indiana, in Banc.

November 14, 1941

Owen S. Boling and Stuart A. Coulter, both of Indianapolis, and Bowers, Feightner & Bowers, of Huntington, for appellant.

Bent & Bent, of Wabash, for appellee.

STEVENSON Judge.

This is an appeal from a judgment in favor of the appellee in an action based upon an accident insurance policy, issued to the appellee by the appellant.

The appellant filed a motion to strike out the amended complaint which motion was overruled, and this ruling is the first error assigned on appeal. The appellant then addressed a demurrer to the amended complaint, and this demurrer was overruled. This ruling is the second error assigned on appeal. An answer in four paragraphs was then filed by the appellant, and the cause was submitted to the court for trial without a jury. The court made and filed a special finding of facts and stated its conclusions of law thereon. Exceptions were taken to each conclusion of law, and each of these conclusions is assigned as error in this court. No motion for new trial was filed by the appellant.

The facts, as found by the court, disclose that on September 28 1931, the appellant issued to the appellee its policy of insurance, by the terms of which the appellee was insured against disability resulting from injuries received by accidental means. This policy provided that it would pay the appellee indemnity at the rate of $100 per month for total disability resulting from such injuries for a period of not exceeding 36 consecutive months from the date of disability.

The court further found that on October 15, 1931, and while said policy of insurance was in full force and effect, the appellee sustained personal injuries, as a result of an accident, by which he was wholly disabled. The appellant denied any liability under terms of its policy, and on January 12, 1933, the appellee filed a complaint in the Wabash Circuit Court against the appellant to recover the amounts due him, under the terms of the policy for such disabling injuries.

This case was tried by the court on the 24th day of February 1933, and the court found that the appellee was entitled to recover on the policy of insurance sued upon the sum of $1,612.50, for the period from October 15, 1931, to February 24, 1933, the date of said trial. Judgment was accordingly entered for this amount. The appellant appealed from this judgment to the Appellate Court of Indiana, which judgment was affirmed by the Appellate Court of Indiana, 102 Ind.App. 445, 200 N.E. 432, and a petition for rehearing was denied by said court on June 4, 1936. Petition to transfer was denied by the Supreme Court on September 30, 1936.

The facts thus far recited are not in controversy. In order to better understand the contentions here made, we think it advisable to set out verbatim the court's findings No. 8 and 9.

"(8) The court further finds that in March, 1933, plaintiff's attorney had a conversation with defendant's attorney, one Mr. Coulter, and with the president of the defendant company, one Mr. Scholer, and that plaintiff's attorney asked the said Mr. Coulter and Mr. Scholer if the defendant corporation would pay the future monthly indemnity as it became due each month under the said contract of insurance, and that the said Mr. Coulter, in the presence and hearing of the said Mr. Scholer, replied that the defendant did not consider itself liable to plaintiff under said policy of insurance, and that if the said Wabash Circuit Court rendered judgment against it, the same would be appealed and would be reversed on appeal. Mr. Coulter further said to plaintiff's attorney, in the presence and hearing of Mr. Scholer that said defendant did not believe there was any liability under said contract of insurance and that the American Income Insurance Company, defendant therein, was denying all liability under said contract of insurance.

"(9) The court further finds that in October, 1933, the plaintiff's attorney had another conversation with the said Mr. Coulter, attorney for the said American Income Insurance Company, and with the said Mr. Scholer, president of said company, in which said plaintiff's attorney told Mr. Scholer and Mr. Coulter that the plaintiff could bring an action on said policy of insurance every month as each future instalment became due and the said Mr. Coulter in the presence and hearing of the said Mr. Scholer, requested the plaintiff's attorney not to bring another action on the said contract of insurance as any further actions would be unfair and vexatious and that the present action then pending, that is, cause number 4980 in the Wabash Circuit Court, would settle all liability existing between the parties, and the said Mr. Coulter, in the presence and hearing of the said Mr. Scholer, further told plaintiff's attorney that his company, the American Income Insurance Company, defendant therein, was denying all liability under said contract of insurance and that the suit then pending would settle all liability between the plaintiff and the defendant and that the defendant was appealing the decision of the Wabash Circuit Court and that if it lost the decision on appeal it would then pay the entire amount that would be due under said policy of insurance, including future installments, and that if plaintiff won the suit then pending that is, cause number 4980 in the Wabash Circuit Court, the defendant company would pay the entire amount of insurance when that litigation was ended."

The court further found that the appellant relied upon these statements and representations set forth in findings No. 8 and 9, and further found that the appellant failed to pay the appellee the monthly indemnity of $100 due each month from and after February 24, 1933, in violation of its agreement as set forth in findings No. 8 and 9, although the appellee was wholly disabled, as a result of said injury from said date until the time of trial. The court further found that the appellant, by its representations and requests, as set forth in findings No. 8 and 9, waived its right to require the appellee to submit monthly statements of his physical condition, and waived the necessity to make monthly claims for indemnity as provided in said policy of insurance. The court found that none of the monthly indemnity that was due from February 23, 1933, until October 15, 1934, has been paid and that the appellee has performed all the conditions and obligations imposed upon him by the terms of the policy, except such as have been waived by the appellant.

The court further found that on October 16, 1936, the appellee filed a complaint in the Wabash Circuit Court demanding payment of the amount due under said policy for the period between February 23, 1933, and October 15, 1934. This cause was continued from time to time and tried on November 16, 1937. On December 31, 1937, and before judgment was rendered, the appellee dismissed this cause of action, and on the same day the appellee filed this complaint on the same policy by which recovery for the same period of time is sought. Upon these facts, the court concluded the law to be as follows:

"1. That plaintiff has done and performed all the terms and conditions of the policy of insurance, which is the basis of this action, except such terms and conditions as have been waived by defendant.

"2. That the law is with the plaintiff herein and he is entitled to recover on the policy in suit from the defendant in this action the monthly indemnity of One Hundred Dollars ($100.00) per month for the period of time beginning February 24, 1933, and ending October 15, 1934, together with interest on each of said installments from the date the same became due, and that the total of said monthly indemnity plaintiff is entitled to recover herein amounts to the sum of Nineteen Hundred Seventy Dollars (1970.00) and interest on each of said monthly indemnity amounts to the sum of Seven Hundred Sixteen Dollars and Fourteen Cents ($716.14), and that plaintiff is entitled to recover the total sum of Twenty-six Hundred and Eighty-six Dollars and Fourteen Cents ($2686.14).

"3. That plaintiff is entitled to recover of and from the defendant his costs and charges herein laid out and expended."

To each of these conclusions, the appellant excepted. Judgment was rendered thereon, and it is from this judgment that this appeal has been taken.

The appellant first contends that the court erred in overruling the motion to strike out the amended complaint as a sham pleading. In support of this contention, the appellant insists that, by the filing of the second suit, on the 16th day of October, 1936, to recover the amounts due from February 23, 1933, to October 15, 1934, it is made to affirmatively appear that the appellee did not rely upon the representations and promises made, as pleaded in the present amended complaint. In other words, the appellant contends that by filing this second suit within the period of time granted by the policy, and the voluntary dismissal of the same, the appellee cannot now truthfully say that he relied on the promises made him by the appellant, to the effect that the claim would be paid without further litigation, if the case then in court should be finally affirmed.

The record does not disclose the allegations contained in this second complaint which was filed and dismissed. Whether the appellee in that complaint alleged the same facts which appear in the present complaint is not disclosed. In his second complaint, the appellee was not required to allege and prove facts constituting a waiver of the time limitation fixed in the policy for bringing suit, for the reason that such suit was filed well...