Cont'l Life Ins. Co. v. Hauser

• Decision Date: 17 June 1887
• Citation: 111 Ind. 266,12 N.E. 479
• Parties: Continental Life Ins. Co. v. Hauser.
• Court: Indiana Supreme Court

111 Ind. 266

12 N.E. 479

Continental Life Ins. Co.

v.Hauser.

Supreme Court of Indiana.

June 17, 1887.

Appeal from circuit court, Vigo county.J. Buchanan, for appellant. Eggleston & Reed, for appellee.

Howk, J.

This cause is now before this court for the second time. On the former appeal, the opinion and judgment of this court are reported under the title of Continental Life Ins. Co. v. Houser, 89 Ind. 253. When the cause was returned to the court below, appellee filed an amended complaint in four paragraphs. Of these, appellant's demurrer was sustained to the second paragraph, and appellee voluntarily withdrew the third paragraph of her complaint. Issues were joined on the first and fourth paragraphs of complaint by appellant's answer in general denial thereof. These issues were tried by a jury, and a verdict was returned for appellee assessing her damages in the sum of $593.75; and, over appellant's motion for a new trial, the court rendered judgment on the verdict. Errors are assigned here by appellant, which call in question (1) the sufficiency of the first paragraph of the complaint when challenged for the first time in this court; (2) the overruling of its demurrer to the fourth paragraph of complaint; and (3) the overruling of its motion for a new trial.

1. It is conceded by appellant's counsel, in his brief of this cause, that the first paragraph of appellee's complaint, now before this court, is the same substantially as her third paragraph of complaint on the former appeal herein. We then held that such third paragraph, “although badly drawn and lacking in certainty,” was sufficient on demurrer as an “ordinary count for money had and received.” If the paragraph is sufficient on demurrer,-and our former holding is conclusive that it is,-surely it is sufficient when, as here, it is called in question for the first time by an assignment of error in this court.

2. Appellant's counsel vigorously assails in argument the overruling of the demurrer to the fourth paragraph of appellee's complaint. Appellee's counsel claims, however, that, if this ruling be erroneous, it is a harmless error, for the reason that the court below “excluded all evidence offered under the fourth paragraph of complaint. This is equivalent, we think, to an admission on the part of appellee that the verdict and judgment below herein rests, and must be rested, upon the first paragraph of appellee's complaint. Besides, the fourth paragraph of complaint, now before us, states substantially the same facts as were stated in the fourth paragraph of complaint, on the former appeal herein, the substance of which facts we have given in our former opinion. We then held, and we see no cause for changing our decision, that the facts so stated were not sufficient to withstand a demurrer, and that the paragraph of complaint was not good for any purpose or upon any theory.” In the case under consideration, the court clearly erred, we think, in overruling appellant's demurrer to the fourth paragraph of appellee's complaint.

3. In our opinion on the former appeal herein, we said: “The policy was valid in its inception, and there was for a time a risk, and the general rule is that, where the risk attaches, premiums cannot be recovered from the company. Bliss, Life Ins. 750; May, Ins. § 567. If there was a continuing valid risk up to the time the last premium was tendered and refused, then the premiums previously paid cannot be recovered. May, Ins. §§ 568, 569.” We think this is a correct statement of the law, and certainly it is the law of this case; for the rule of law applied by this court in the decision of a cause remains the law of that case in all subsequent proceedings...