Excelsior Mutual Aid Asso. v. Riddle

• Decision Date: 11 May 1883
• Docket Number: 10,238
• Parties: The Excelsior Mutual Aid Association of Anderson, Indiana, v. Riddle
• Court: Indiana Supreme Court

91 Ind. 84

The Excelsior Mutual Aid Association of Anderson, Indiana, v. Riddle

No. 10,238

Supreme Court of Indiana

May 11, 1883

Petition for a Rehearing Overruled October 11, 1883.

From the Madison Circuit Court.

The judgment is affirmed, with costs.

J. W Sansberry, M. A. Chipman and J. W. Sansberry, Jr., for appellant.

R. Lake and W. R. Pierse, for appellee.

OPINION

Howk J.

This suit was brought by the appellee against the appellant upon a written contract, executed on the 17th day of June, 1880, to one Aaron F. Riddle, whereby the appellant, for certain considerations expressed therein, assured the life of the said Aaron F., in the sum of $ 2,500, for the term of seventeen years, for the use and benefit of his daughter, the appellee. It was stipulated in such contract that, if Aaron F. Riddle should die before the expiration of the term aforesaid, the sum insured was to be paid within ninety days after legal proof of death was made to the secretary of the appellant at its home office. In her complaint the appellee alleged, among other things, that on the 15th day of February, 1881, the said Aaron F. Riddle departed this life, and, on the same day, written proof of his death was furnished to the appellant, and that she had duly performed all the conditions of the contract on her part to be performed; that Aaron F. Riddle, during his lifetime, duly performed all the conditions of the contract on his part; that the appellant had not paid the said sum of $ 2,500, nor any part thereof, but the same remained unpaid. Wherefore, etc.

The cause was put at issue and tried by the court, and resulted in a finding and judgment in favor of appellee and against appellant, for the sum of $ 2,500 and costs of suit.

In their brief of this cause the appellant's counsel first insist that the trial court erred in overruling the demurrer to the appellee's complaint for the alleged insufficiency of the facts therein to constitute a cause of action. Counsel claim that the appellee was not entitled to the remedy pursued by her in this action, and that her proper remedy was by mandate to compel the appellant's officers to make an assessment upon its members, and not a direct action upon the written contract. No authority is cited by counsel in support of their position, and it seems to us untenable. It has always been the rule in this State that where a party has another specific legal remedy he can not resort to a proceeding by mandate. Board, etc., v. Hicks, 2 Ind. 527; Louisville, etc., R. R. Co. v. State, ex rel., 25 Ind. 177; State, ex rel., v. Board, etc., 45 Ind. 501. It is clear, we think, that upon the contract in suit the appellee had an adequate legal remedy in the ordinary civil action.

Appellant's counsel further say that the complaint was bad on the demurrer thereto, because it did not show that legal proof of the death of Aaron F. Riddle had been furnished to the secretary of the appellant. The complaint showed, however, that such proof was furnished to the appellant, and this, we think, was sufficient.

The last objection to the complaint, suggested by counsel, is that there was no demand shown therein. Where the suit is upon a written contract, for money shown to be due thereon, it is not necessary that the complaint should aver a demand therefor before suit brought. School Town of Princeton v. Gebhart, 61 Ind. 187.

The demurrer to the complaint was correctly overruled.

Appellant's counsel next discuss the alleged errors of the trial court in overruling its demurrers to the second, third and fourth paragraphs of appellee's reply to the second paragraph of appellant's answer. In this paragraph of its answer the appellant stated, in substance, that Aaron F. Riddle, in his application for the contract of insurance in suit, had falsely answered certain questions in the application, and had fraudulently concealed the truth in answering other questions, to the effect that he was then in good health; that he had not been sick for years, nor been attended by a physician; that he had no usual medical attendant; that he had never had any serious illness, local disease or personal...