Commercial Life Insurance Company v. McGinnis
| Decision Date | 28 March 1912 |
| Docket Number | 7,529 |
| Citation | 97 N.E. 1018,50 Ind.App. 630 |
| Parties | COMMERCIAL LIFE INSURANCE COMPANY v. MCGINNIS |
| Court | Indiana Appellate Court |
Rehearing denied June 7, 1912.
From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.
Action by Emily S. McGinnis against the Commercial Life Insurance Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Robinson & Stilwell, Pickens, Cox & Conder, for appellant.
Morton C. Embree, Harvey Harmon and Lucius C. Embree, for appellee.
On January 2, 1908, appellant issued a policy on the life of John R. McGinnis, with Emily S. McGinnis, his wife, as beneficiary, who brought this action to enforce its payment.
A demurrer for want of facts, to the complaint in one paragraph, alleging facts usual in such cases, was overruled and this ruling is assigned as error.
The insured's application, which is made a part of the policy by reference, is not made a part of the complaint, and for this reason only the pleading is claimed to be defective. Appellant, in support of this contention, insists that the rule of pleading in this State in this respect should no longer be followed. Appellant's argument is persuasive, but we are not convinced that the rule so well settled should be overruled. Federal Life Ins. Co. v. Kerr (1910), 173 Ind. 613, 89 N.E. 398, 91 N.E. 230; Penn Mut. Life Ins. Co. v. Norcross (1904), 163 Ind. 379, 72 N.E. 132; Bird v. St. John's Episcopal Church (1900), 154 Ind. 138, 56 N.E. 129; Mutual Reserve Life Ins. Co. v. Ross (1908), 42 Ind.App. 621, 86 N.E. 506.
The overruling of appellant's motion for a new trial is assigned as error. Under this assignment the only questions presented by appellant's brief are, that the verdict is not sustained by sufficient evidence, and that it is contrary to law.
In support of these causes for a new trial, appellant insists that the policy was never in force, for the reason that by its terms it did not go into effect unless the first premium was actually paid during the lifetime and good health of the insured.
There is such a provision in the policy, as claimed by appellant, but in connection therewith is the further provision, that the premium may be paid to an authorized agent of the company in exchange for a receipt signed by the president or secretary, and countersigned by the agent.
From the condensed recital of the evidence in appellant's brief, it is difficult to determine what the evidence is on this subject, but as we understand it, the record shows that on December 31, 1907, the insured, at the solicitation of N. R. Greene, appellant's authorized agent, made application for the policy sued on, and which was issued on January 2, 1908. The first premium was $ 57.52, and at the time the insured made said application said agent delivered to him a receipt for $ 57.52, signed by appellant's secretary and "countersigned by N. R. Greene, agent." There is evidence tending to show that the insured paid only $ 5 on account of the first premium, and appellant claims that it did not know the full premium was not paid until more than seven months after it issued the policy. Then, August 19, it tendered to the insured the money so paid by him, and demanded a return of the policy which had been unconditionally delivered to him. The tender so made and appellant's demand were refused. Appellant insists that the evidence shows that this is an "aggravated case of rebating", and a fraud on all other policy holders.
At the time the insured made his application and the policy in suit was issued, there was no law against rebating, and from all the evidence bearing on the amount of money paid by the insured on account of the first premium, we are inclined to the opinion that the jury was authorized to infer that if less than the full amount of the first premium was paid, it was with the knowledge and consent of appellant. In any event, under the facts in this case, knowledge of the agent was notice to appellant. Metropolitan Life Ins. Co. v. Willis (1906), 37 Ind.App. 48, 76 N.E. 560. This may be a case of rebating, as claimed, but if so, appellant will not be allowed to take advantage of its own conduct to defeat a contract in this respect fairly entered into. The execution of the contract sued on must be taken as admitted, by a failure to deny it under oath. § 370 Burns 1908, § 364 R. S. 1881; Phoenix Ins. Co. v. Rowe (1889), 117 Ind. 202, 20 N.E. 122.
In the case of Penn Mut. Life Ins. Co. v. Norcross supra, it is said on page...
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