Metropolitan Life Insurance Company v. Bowser
| Decision Date | 21 April 1898 |
| Docket Number | 2,265 |
| Citation | 50 N.E. 86,20 Ind.App. 557 |
| Parties | METROPOLITAN LIFE INSURANCE COMPANY v. BOWSER |
| Court | Indiana Appellate Court |
Rehearing denied June 30, 1898.
From the Allen Circuit Court.
Reversed.
Zollars & Worden, for appellant.
H. I Smith and R. B. Dreibelbiss, for appellee.
The appellee brought her action against the appellant before a justice of the peace to recover back certain amounts paid by her as premiums upon six policies of insurance. On appeal from the justice, an amended complaint was filed in the court below in six paragraphs. A demurrer to each paragraph for want of sufficient facts was overruled.
In the first paragraph it was stated that the appellant was a life insurance company, organized under and pursuant to the laws of the state of New York, and was doing a life insurance business in the city of Fort Wayne, Allen county, Indiana that it had its regular established agency at that city for the purpose of soliciting insurance for the appellant; that on or before the 5th day of March, 1894, the appellant by its agent doing business for the appellant in said city, importuned the appellee to take out an insurance policy upon the life of one Daisy M. L. Bowser, "who is a minor," said agent representing to appellee that the same could be had upon said life, and that the application for the same need not be signed by the insured; whereupon an application was made upon said life, and the same was signed by some person other than the appellee or said Daisy M. L. Bowser, in the name of said Daisy M. L. Bowser; that on the 5th day of March, 1894, the appellant issued policy No. 9,545,315 upon the life of said Daisy M. L. Bowser to appellee for $ 128.00, with a payment of a weekly premium of ten cents; that the appellee paid said premiums as the same became due, and had paid the same up to and including April 15, 1895; that appellee had done everything on her part to be performed; that on the day of , 1895, the appellant notified the appellee that said policy had been illegally issued, and was void, and that the appellant had lapsed the same for said reason, whereupon the appellee demanded of the appellant that the amount of said premiums so paid be returned to her; that the appellant refused and still refuses so to pay; that appellee could not more specifically state the day of "said cancelation;" that there had been paid by appellee on said policy, in weekly payments, the sum of $ 6.00; that said policy was void for the reason that the application for said policy was never signed by the assured; that the appellant had had the use of the money so paid in, and that the interest for the equated time of said payments was thirty cents; that there was due and unpaid to the appellee said sums, amounting to $ 6.30; wherefore, etc.
The second paragraph of the amended complaint, after introductory matter like that in the first, alleged that, on or before the 8th day of May, 1893, the appellant, by its agent doing business for said company in said city, importuned the appellee to take out an insurance policy upon the life of one George Killen, said agent representing to appellee that the same could be had upon said life without his knowledge or consent, and that the application for the same need not be signed by the insured, upon which the appellee relied, whereupon an application was made upon said life, and the same was signed by some person other than said Killen, "who was and is now unknown to plaintiff," in the name of said Killen, and upon the 8th day of May, 1893, the appellant issued policy No. 8,621,343 upon the life of said Killen to the appellee for $ 122.00, with a payment of a weekly premium of ten cents; that the appellee paid said premiums as they became due, "and has now the same paid in advance" to October 14, 1895; that appellee had done and performed every thing on her part to be performed; that on the day of , 1895, the appellant notified the appellee that said policy had been illegally issued and was void, and that the appellant had lapsed the same for said reason, whereupon the appellee demanded of the appellant that the amount of said premiums so paid be returned to her, and that the appellant refused and still refused so to pay; that appellee could not more specifically state the date of said cancelation; that "said policy is void, and that the same is void for the reason that the application for said policy was never signed by the assured, and for the further reason that the plaintiff has no insurable interest in the life insured, neither by blood or marriage or as a creditor, and that the same was void at the time it was issued;" that appellee is an uneducated and ignorant woman and unacquainted with the ways of business; that there had been paid by the appellee on said policy, in weekly payments, the sum of $ 12.80; that the appellant had had the use of said money as paid in, and interest for the equated time of said payments was eighty-seven cents; that there was due and unpaid to the appellee said sums amounting to $ 13.67; wherefore, etc.
The third paragraph related to a policy upon the life of one Elizabeth Etzel, the fourth to a policy upon the life of one Henry Guth, the fifth to a policy upon the life of one Caroline Yohey, the sixth to a policy upon the life of one Louisa Guth. All the paragraphs after the second were like it except as to the names of the persons upon whose lives the policies were issued, the dates, the numbers of the policies, the amounts for which the policies were issued and the amounts of the premiums, and, except that in the fourth paragraph after the allegation that the appellee had no insurable interest in the life insured, the words "neither by blood or marriage or as a creditor," or equivalent words were not inserted, and in the sixth paragraph the word "blood" was not used in that connection.
Much indulgence must be extended to pleadings in causes commenced before a justice of the peace. It is well settled that in a civil suit originated before a justice of the peace, a complaint will be treated as sufficient upon demurrer thereto for want of facts, upon appeal in the circuit or superior court, if it contain enough to inform the defendant of the nature of the plaintiff's claim, and be so explicit that a judgment thereon will bar another suit for the same cause of action. Beineke v. Wurgler, 77 Ind. 468; Milhollin v. Fuller, 1 Ind.App. 58, 27 N.E. 111; Clifford v. Meyer, 6 Ind.App. 633, 34 N.E. 23. Many cases may be found in our reports wherein complaints in causes commenced before justices have been held sufficient when doubt has been expressed as to their sufficiency if tested by the rules of good pleading in causes originating in courts of general jurisdiction.
The action to recover back premiums on the ground that the policy is void ab initio is not founded upon the policy. It proceeds rather upon the theory that there is no valid policy, but that the premiums have been paid upon a consideration which has failed. Such payments are not regarded as voluntary, and they are recoverable as money had and received to the plaintiff's use. See Waller v. Northern Assurance Co., 64 Iowa 101, 19 N.W. 865. If the risk has not attached, the premium paid (which is dependent upon the risk and regulated by it), in the absence of fraud on the part of the assured, must be returned, for it has not been earned. If there be no fraud of the insured, though there be negligence on his part, he may recover, if there be no risk run by the insurer. Jones v. Insurance Co., 90 Tenn. 604, 18 S.W. 260, 25 Am. St. 706; Joyce on Insurance, section 1390, and cases cited.
The liability to return the premiums paid depends upon whether there is a contract of insurance under which a risk is run by the insurer in favor of the insured. To constitute such a contract...
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