Penn Mutual Life Insurance Company v. Norcross

• Decision Date: 25 October 1904
• Docket Number: 20,359
• Citation: 72 N.E. 132,163 Ind. 379
• Parties: Penn Mutual Life Insurance Company v. Norcross
• Court: Indiana Supreme Court

72 N.E. 132

163 Ind. 379

Penn Mutual Life Insurance Company v. Norcross

No. 20,359

Supreme Court of Indiana

October 25, 1904

From Superior Court of Vanderburgh County; J. H. Foster, Judge.

Action by Ida A. Norcross against the Penn Mutual Life Insurance Company. From a judgment for plaintiff on a verdict for $ 5,335.83, defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.

Affirmed.

A. J Clark, G. D. Heilman and G. W. Pepper, for appellant.

G. F Denby, R. C. Wilkinson and F. C. Gore, for appellee.

OPINION

Gillett, J.

This was an action upon an instrument purporting to be a policy of insurance on the life of George A. Norcross in favor of his wife, the appellee, if she survived him; but, if not, the policy provided that it should be payable to the executors, administrators, or assigns of said George A. Norcross. The instrument purports to be signed by the president and secretary of the company. In part, it reads: "In consideration of the application for this policy, hereby made a part of this contract, the Penn Mutual Life Insurance Company of Philadelphia insures the life of George A. Norcross," etc. It is recited in said instrument that it is issued upon the condition of "the payment in advance to the company at its home office of the sum of $ 68.50 at the date hereof," and of the payment of the stipulated annual premiums as they thereafter mature. Provision was made in said instrument for the conversion of the policy into one of certain other forms of insurance upon the application of the "legal holders." The policy also contained the following provisions and conditions: "I. This contract is absolutely incontestable from date of issue for any cause except nonpayment of premium." "III. This policy does not take effect until the first premium shall actually have been paid during the good health of the assured. All premiums are due and payable at the home office of the company in the city of Philadelphia, but they may be paid to agents, on or before the dates when due, in exchange for receipts signed by the president, vice-president, secretary, treasurer, or actuary. If not paid when due the policy shall be null and void. From any sum payable under this policy there shall be deducted the unpaid portion of the year's premium, if any, and any indebtedness to the company on account of this contract." "VIII. Pursuant to law, a copy of the application for this policy is attached hereto. No alteration of this contract or waiver of any of its conditions shall be valid unless made in writing and signed by an officer of the company."

The complaint was in two paragraphs, to each of which a demurrer was overruled. Appellant filed six paragraphs of answer, to some of which a demurrer was sustained. There was a general denial filed. None of the answers was verified. There was a trial by jury, and a verdict and judgment for appellee. Appellant filed a motion for a new trial, but its motion was overruled.

It is first contended by appellant's counsel that each paragraph of the complaint was insufficient, for the reason that there was no exhibit of the application on which the policy purports to have been issued attached to the complaint. There is no merit in this objection. Continental Life Ins. Co. v. Kessler (1882), 84 Ind. 310; Penn Mut. Life Ins. Co. v. Wiler (1884), 100 Ind. 92, 50 Am. Rep. 769; Phoenix Ins. Co. v. Stark (1889), 120 Ind. 444, 22 N.E. 413. And see Carnahan v. Campbell (1902), 158 Ind. 226, 63 N.E. 384.

We shall endeavor to set out at least the substance of the paragraphs of answer to which a demurrer was sustained. The second paragraph of answer to the first paragraph of complaint charges, in terms, that the defendant is a mutual insurance company organized and existing under and by virtue of the laws of the state of Pennsylvania; that the contract sued on was executed in and subject to the laws of said state; that by the laws of Pennsylvania the beneficiary of the insured in a mutual insurance company, and particularly the defendant company, does not take and hold a vested interest in the policy on the life of the insured; that no premium was ever paid upon the policy or for the execution of the policy sued on; that said George A. Norcross executed his note for the full amount of the first premium, payable four months after date; that the note matured in his lifetime, and he defaulted the payment of the same; that afterwards he executed to the defendant, in consideration of the surrender of the note to him, an instrument in writing assigning said policy to it. This instrument, which is set out in said answer, purports to be an assignment of a policy answering the description of the policy in suit, executed on behalf of said Norcross, and as attorney in fact for all of the beneficiaries under the policy, in consideration of the surrender of a four-months' note for $ 68.50 given in settlement of the first annual premium of said policy; and the instrument concludes with an attempted release of the company from any obligation on account of said note.

The second paragraph of answer to the second paragraph of complaint seems to be the same in effect as the one stated in substance above, except that it sets out provision eight of said policy, and also an application which it is alleged that said George A. Norcross made in writing for said policy. The body of the application is as follows:

"I hereby warrant and agree * * * that the company shall incur no liability until this application has been received, approved, the policy issued thereon by the company, and delivered and paid for during my lifetime and good health; and that the policy applied for shall be in the form now in use by the company; and that the place of contract shall be in the city of Philadelphia, state of Pennsylvania."

The third paragraph of answer to the second paragraph of complaint charges that the defendant is a mutual insurance corporation existing under the laws of the state of Pennsylvania. The paragraph then sets up the application and provision eight of said policy. It charges that the laws of the state of Pennsylvania provide, and the courts of said state so construe the law of said state to be, that the beneficiary of the assured in a mutual insurance company, and particularly the defendant company, has no interest in the policy until the death of the insured, and that the insured is authorized to surrender the policy without the consent of the beneficiary, and the paragraph concludes with the same allegations relative to the taking out and surrender of the policy as are found in the answer first mentioned above.

The fourth paragraph of answer relies on the law of Pennsylvania as a factor in the contract, it being alleged that at the time of the issuing of said policy it was, and ever since has been, "the law of Pennsylvania, as the same is reported and set out in the 3 Week. No. Cas. page 513, in the case of Penn Mut. Ins. Co. v. Watson," that the beneficiary had no interest in such a policy of insurance, and that the assured might surrender it. From that point the paragraph proceeds along the lines of some of the answers that we have referred to.

The fifth paragraph of answer is like the fourth, except that it sets out the application and contains some rather obscure allegations relative to a contemporaneous agreement between the agent and the insured, that if he did not pay the note he would execute the policy-surrender contract which we have mentioned above.

It may be said of each of said answers that it possesses the fault of commingling matters of fact that have no relation to each other. As was said in the opinion in Platter v. City of Seymour (1882), 86 Ind. 323, 326, and in substance often reiterated by this court: "To permit an isolated statement to control the scope and meaning of a long and involved pleading would be destructive of all certainty in pleading, result in injury to litigants, and impose upon the trial court the burden of looking into out of the way places to discover if disconnected and irrelevant allegations existed which might change the drift of the general averments of the complaint. Such a system would make pleadings mere traps for the ensnaring of the adverse parties, and would give to pleadings a protean character, which all rules of practice condemn." We are greatly at a loss, because of the manner in which the pleadings under review have been prepared, to determine what the leading theory of each of said answers is. We have concluded, however, that we may reach the merits of this appeal, so far as concerns the assignments of error which draw in question the sustaining of the demurrer to said answers, without attempting to stamp a definite theory upon each of them. So proceeding, we may observe that they attempt to plead matters that it is claimed prevented the contract from having any inception, or else they set up matters relied on to avoid the continuance in force of the policy, by reason of its terms.

Of these matters in their order: Each paragraph of the complaint charged that the defendant executed the policy. Section 115 of the civil code (§ 367 Burns 1901) provides "Where a pleading is founded on a written instrument, or such instrument is therein referred to; * * * such instrument or assignment may be read in evidence on the trial of the cause without proving its execution, unless its execution be denied by pleading under oath, or by an affidavit filed with the pleading denying the execution." There can be no waiver of the objection that such an answer is not verified by failing to move to strike it out, for the code contemplates that the effect of failing to deny the execution of the instrument under oath is to preclude the defendant from giving...