Metro. Life Ins. Co. v. Winiger, No. 27151.

• Docket Nº: No. 27151.
• Citation: 17 N.E.2d 86, 215 Ind. 120
• Case Date: October 31, 1938
• Court: Supreme Court of Indiana

215 Ind. 120
17 N.E.2d 86

METROPOLITAN LIFE INS. CO.
v.
WINIGER.

No. 27151.

Supreme Court of Indiana.

Oct. 31, 1938.

Appeal from Superior Court, Vanderburg County; Benj. E. Berente, judge.

Action by Magdalen Winiger against the Metropolitan Life Insurance Company to recover on an insurance policy. From a judgment in favor of the plaintiff, the defendant appealed to the Appellate Court, 12 N.E.2d 1008, which affirmed the judgment, and the case was transferred to the Supreme Court.

Judgment reversed with instructions.

[17 N.E.2d 87]

Meyer, Fine & Bamberger, of Evansville, for appellant.

Edgar Durre and Winfield Denton, both of Evansville, for appellee.

Robt. A. Adams, of Indianapolis, amici curiae.

ROLL, Judge.

This action was brought by appellee against appellant to recover on an insurance policy. The policy was issued to Alphons J. Winiger and appellee was named as the beneficiary thereof.

The complaint was in two paragraphs to which appellant filed a verified answer in general denial and an affirmative answer. There was special findings and conclusions of law. The trial court found in favor of appellee in the sum of $1788.50, and costs. Appellant duly excepted to each conclusion of law, and also filed its motion for a new trial which was overruled with exceptions to appellant.

The errors assigned for reversal are:

(1) The court erred in its conclusion of law No. 1, which conclusion read as follows: ‘The law is with the plaintiff.’

(2) The trial court erred in its conclusion of law number two (2), which said conclusion reads as follows: ‘The plaintiff is entitled to recover of and from the defendant the face amount of the insurance policy in the sum of two thousand dollars ($2,000.00) plus interest at the rate of six per centum (6%) per annum from May 10, 1933, less the amount of loan indebtedness owing by the insured to the defendant in the sum of three hundred forty-four dollars ($344.00) and interest at the rate of six per centum (6%) per annum to date, making a total sum to be deducted of four hundred fifty-six dollars fifty cents ($456.50) and leaving a net amount plaintiff is entitled to recover from the defendant of one thousand seven hundred eighty-eight dollars fifty cents ($1,788.50), together with her costs herein laid out and expended.’

(3) The trial court erred in overruling the motion of appellant for a new trial.

The motion for a new trial assigns the following grounds, upon which appellant relies: (1) The decision of the court is not sustained by sufficient evidence, (2) the decision of the court is contrary to law, and (3) there is error in the assessment of the amount of recovery, in that the assessment is too large.

The facts are not in dispute, and are in substance, as found by the trial court as follows.

The policy of insurance, here in question was issued by appellant to Alphons J. Winiger, wherein appellee was named as the beneficiary, for the face amount of two thousand ($2,000) dollars. The premiums were duly paid until July 13th, 1932, but the premium due July 13th, 1932, was not paid and said policy was thereupon duly lapsed by the said insured for non-payment of premium. That on October 29, 1932, appellant notified insured that said policy had lapsed by reason of the non-payment of premium due July 13, 1932 and that said policy had lapsed on said date to-wit, July 13, 1932.

On October 22, 1929, the insured, Alphons J. Winiger, borrowed from appellant $344, and executed a loan certificate therefor, which loan had not been liquidated, and was a legal and valid indebtedness from the insured to the appellant at the time the policy lapsed and at the time of the insured's death.

Alphons J. Winiger, died on April 24, 1933. At the time the policy lapsed for non-payment of premiums there was due on the loan as interest $54.02, or a total indebtedness of $398.02.

On January 5, 1934, appellant tendered and delivered to Edgar Durre, of Evansville, Indiana, as attorney and agent for appellee, its check for and in full settlement of its liability under the policy, the sum of one hundred ninety nine dollars

[17 N.E.2d 88]

twenty-one cents ($199.21) which amount represented the amount of extended insurance as calculated by appellant, towit, one hundred ninety five ($195) dollars the amount of extended insurance, plus four dollars twenty one cents ($4.21) interest, which check appellee declined to accept, and which was returned to appellant. On February 7, 1935, appellant renewed its offer to pay the sum of $199.21, together with interest at 6% from January 5, 1934, or a total of $212.45. This offer was again refused by appellee, and the tender was kept good by the payment of the amount to the...