Equitable Life Assur. Soc. of the United States v. Campbell, 12402.

• Decision Date: 19 December 1925
• Docket Number: No. 12402.,12402.
• Citation: 85 Ind.App. 450,150 N.E. 31
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. CAMPBELL et al.
• Court: Indiana Appellate Court

85 Ind.App. 450

150 N.E. 31

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES

v.CAMPBELL et al.

No. 12402.^*

Appellate Court of Indiana.

Dec. 19, 1925.

Appeal from Circuit Court, Posey County; H. F. Clements, Judge.

Action by Mary L. Campbell and others against the Equitable Life Assurance Society of the United States. From judgment for plaintiffs, defendant appeals. Reversed, with instructions.

Superseding former opinion in 148 N. E. 505.

Welman & Darby, of Evansville, and Embree & Embree, of Princeton, for appellant.

Denton & Denton and Lane B. Osborn, all of Evansville, and J. W. Wheeler Campbell, of Louisville, Ky., for appellees.

NICHOLS, J.

This was an action by appellees against appellant upon a policy of life insurance upon the life of one Simeon N. Leonard. The issues were joined upon an amended complaint in two paragraphs, an answer in three paragraphs, and a reply to the second and third paragraphs of the answer. There was a trial by jury, a verdict for appellees in the sum of $20,085, and, after appellees had remitted $100, judgment was rendered upon the verdict.

The only error assigned is that the court erred in overruling the appellant's motion for a new trial.

The first paragraph of the amended complaint was dismissed at the time of the trial. It is averred in the second paragraph that on June 30, 1903, appellant issued to Leonard a policy of insurance on his life bearing date of said day for $10,000, on the death of the said assured to be paid to his five children therein named as beneficiaries, being appellees and two others who died after the assured unmarried leaving no child or children and no father and no mother, but leaving appellees surviving them, the said surviving brother and sisters being their only heirs and being entitled to their estate; that said assured and the beneficiaries have performed all the conditions of said policy and contract of insurance on their part to be performed. Appellant answered in general denial, and by a second and a third paragraph of answer averring forfeiture of the policy for failure to pay the second annual premium.

The first paragraph of complaint contained an averment of waiver of proofs by a denial of liability because of forfeiture, and competent evidence to that effect was heard; but thereafter the first paragraph was dismissed. The second paragraph contained no such specific averment, but only the general averment that the assured and the beneficiaries had performed all of the conditions of the policy and contract of insurance on their part to be performed. Appellant contends that after the dismissal of the first paragraph of complaint there was no issue of waiver, that the evidence thereof was incompetent and could not be considered, and that the court erred in instructing the jury that a denial of liability on a policy of insurance by an insurance company on ground other than want of proofs or insufficiency thereof is a waiver of proofs, and excuses the beneficiaries from making the same. It does not appear by the record that there was any withdrawal of the evidence of waiver, or any motion to that effect.

[1][2] It has been held by the Supreme Court of this state that where there is a general allegation of performance of the conditions of the insurance contract, as in this case, under such plea proof of waiver of conditions may be made. Union Fraternal League v. Sweeney, 184 Ind. 378, 111 N. E. 305. The same authority holds that where an insurance company denied all liability on the ground of fraud, it waived the right to insist on proofs of death in accordance with the policy. The principle is applicable here. To the same effect, see Travelers' Insurance Company v. Fletcher American National Bank, 148 N. E. 501 (decided at this term), and authorities there cited.

[3][4] Instruction No. 1, given by the court on its own motion, instructed the jury that before appellees could recover they must prove by a fair preponderance of the evidence all the material allegations of their complaint. This is a correct statement of the law so far as it goes. If appellant desired an instruction covering the issues more completely, it should have tendered such a one. Newcastle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485;Indianapolis, etc., Co. v. Newby, 45 Ind. App. 540, 90 N. E. 29, 91 N. E. 36.

[5] Appellant complains of instructions 5 and 6 given by the court at the request of appellees. These instructions told the jury that the burden was upon appellant to prove by a fair preponderance of the evidence the nonpayment of the second annual premium, the alleged failure to pay which caused the forfeiture of the policy. It is the law that the burden is on the insurance company to prove the nonpayment of any premium after the first. Supreme Lodge v. Johnson, 78 Ind. 110;Sovereign Camp v. Cox, 40 Ind. App. 266, 78 N. E. 683, 80 N. E. 850;New York Life Ins. Co. v. Lahr, 192 Ind. 613, 137 N. E. 673;New York Life Ins. Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789.

[6] In this case, the issues were formed upon that theory, appellant having, by its second and third paragraphs of answer, pleaded nonpayment of the second annual premium. Even if the burden were not with appellant, the court instructed the jury according to the pleadings, and appellant, having thereby invited the alleged error, cannot be heard to complain thereof. Akron Milling Co. v. Leiter, 57 Ind. App. 394, 107 N. E. 99;Louisville, etc., Co., v. Miller, 141 Ind. 533, 37 N. E. 343;Zeller, etc., Co. v. Vinardi, 42 Ind. App. 232, 85 N. E. 378;Chicago, etc., Co. v. Coon, 48 Ind. App. 675, 93 N. E. 561, 95 N. E. 596; 4 C. J. p. 700 et seq.; Ewbank's Manual, § 255.

[7] At the trial of the case, appellees introduced in evidence the policy, the application, proof of death of the insured, and proof of appellant's denial of liability. Appellant introduced evidence, which it says was wholly undisputed, showing that the second annual premium had not been paid, and, claiming that such evidence made prima facie a complete defense, tendered a peremptory instruction that the jury find for appellant. This the court refused to give, and appellant complains that the court's action was reversible error. But appellant's evidence of payment was all in parol, and involves the credibility of witnesses which is for the jury. In Haughton v. Ætna Life Ins. Co., 165 Ind. 32, 73 N. E. 592, 74 N. E. 613, the court, in reversing a judgment because the trial court gave a peremptory instruction, says:

“But, where a determination of the issue involves the credibility of witnesses, and rests upon inferences and deductions to be drawn from facts proved, it will be an invasion of the province of the jury for the court to direct a verdict.”

To the same effect, see New York, etc., Co. v. Callahan, 40 Ind. App. 223, 81 N. E. 670;Hall v. Terre Haute, etc., Co., 38 Ind. App. 43, 76 N. E. 334.

[8] It is not claimed by appellant that appellees failed to establish their case as made by their complaint, but that appellant by uncontradicted evidence has established an affirmative defense. Of course, the burden was with appellant to establish such a defense. The Supreme Court, in Talge Mahogany Co. v. Burrows, 191 Ind. 167, 179, 130 N. E. 865, 870, makes the following forceful answer to appellant's contention:

“But the evidence cannot be held insufficient to sustain a verdict for the plaintiff by reason of affirmative oral testimony of facts pleaded as a defense of which the appellant had the burden of proof. The jury may have found that such defense was not established because they did not believe appellant's witnesses who gave that testimony.”

The same principle is forcefully announced in National City Bank v. Kirk (Ind. App.) 134 N. E. 772, 776.

It appears by the evidence that the gross amount of the first premium was $776.90. Of this...