Prudential Insurance Company of America v. Diffenbaugh
| Decision Date | 17 December 1918 |
| Docket Number | 9,545 |
| Citation | 121 N.E. 301,68 Ind.App. 699 |
| Parties | PRUDENTIAL INSURANCE COMPANY OF AMERICA v. DIFFENBAUGH, ADMINISTRATOR, ET AL |
| Court | Indiana Appellate Court |
From Huntington Circuit Court; Samuel E. Cook, Judge.
Action by Louis A. Diffenbaugh, administrator of the estate of Sarah M. Diffenbaugh, deceased, and others, against the Prudential Insurance Company of America. From a judgment for plaintiff the defendant appeals.
Affirmed.
Lesh & Lesh and Breen & Morris, for appellant.
Bowers & Feightner, for appellees.
This action was instituted by appellee Louis A. Diffenbaugh, in his individual capacity, to recover on a policy of life insurance issued by appellant on the life of Sarah M Diffenbaugh, mother of the plaintiff. The original complaint was in one paragraph and contained the usual allegations in cases of this character, showing the execution of the policy contract, the death of the insured, the compliance with all provisions of the policy by the insured during her lifetime and by plaintiff after her death, and the refusal on the part of appellant to pay the claim. The insurance policy, however, is not copied into or otherwise made a part of the pleading, and explanation is made therefor in the averment: "That after the death of the said Sarah M. Diffenbaugh the said defendant procured possession of said policy of life insurance and refuses to redeliver the same to this plaintiff and for that reason the plaintiff herein cannot set out a copy of said policy of life insurance as a part of this complaint, nor allege the payments thereof with minute particularity." It is also alleged generally "that this plaintiff is the one and only beneficiary named in the said policy of insurance."
Subsequently, on motion of the original plaintiff, Louis A. Diffenbaugh, administrator of the estate of Sarah M. Diffenbaugh, was made a coplaintiff, over the objection of appellant, and a second paragraph of complaint was filed, in which the appointment and qualification of Louis A. Diffenbaugh as administrator of his mother's estate is shown and the allegation made "that the said Louis A. Diffenbaugh and the executor and administrator of the said estate were named as beneficiaries in said policy of insurance." In other respects the second paragraph of complaint is substantially a repetition of the first paragraph.
A demurrer to the first paragraph of complaint was overruled before the second paragraph was filed, and no question is presented with reference thereto. Appellant demurred to the second paragraph of complaint on the grounds: (1) That the pleading shows a defect of parties plaintiff; and (2) that it does not sufficiently allege a cause of action. The first objection is also presented under the second ground of demurrer, and apparently rests on the fact that the first and second paragraphs of complaint differ as to their designation of the beneficiary named in the insurance contract. There can be no doubt "that a complaint which does not state a good cause of action as to all, though it does as to some of the plaintiffs, is bad as to all, for want of sufficient facts to constitute a cause of action." McIntosh v. Zaring (1897), 150 Ind. 301, 313, 49 N.E. 164, 168, and decisions there collected. In the present case, however, the second paragraph of complaint expressly alleges that the two plaintiffs therein named are cobeneficiaries under the insurance contract, and are thus entitled to maintain a joint action. This averment is clearly at variance with the allegation in the first paragraph that Louis A. Diffenbaugh in his personal capacity is the sole beneficiary, and this circumstance gives rise to a condition which is unusual as applied to various paragraphs of a complaint. For the purposes of a demurrer, however, only that paragraph of a pleading is to be considered which is made the direct object of attack, and, in this instance, appellees' second paragraph of complaint, standing alone, is clearly sufficient as against the objection now under consideration. Counsel's further assertion that this paragraph attempts to state an alternative cause of action is not supported by the language of the pleading, which expressly alleges that the policy is payable to Louis A. Diffenbaugh and the executor or administrator of the insured's estate.
The only remaining objection to the complaint which is discussed in appellant's brief is based on the statutory rule that: "When any pleading is founded on a written instrument or on account, the original, or a copy thereof, must be filed with the pleading." § 368 Burns 1914, § 362 R. S. 1881. We are unable to agree with appellant's contention that the complaint fails to show a sufficient reason for the failure to comply with the above provision, since it has been expressly held that a copy of an instrument in possession of the adverse party need not be filed, especially where a demand for such instrument, or a true copy thereof, has been made and refused. Keesling v. Watson (1883), 91 Ind. 578, 580; National Fire Ins. Co. v. Strebe (1896), 16 Ind.App. 110, 44 N.E. 768; Walter A. Wood, etc., Machine Co. v. Irons (1894), 10 Ind.App. 454, 455, 36 N.E. 862, 37 N.E. 1046.
Appellant presented its defense in six paragraphs of answer and, to the sixth paragraph thereof, appellees filed four paragraphs of reply. Appellant then challenged the sufficiency of the second, third and fourth paragraphs of reply by demurrer, and now asserts that the trial court erred in overruling that demurrer as to the third paragraph of the reply. The record recites that: "The Court, being fully advised in the premises, overrules said demurrer to the 2nd and 3rd paragraphs of the reply to the 6 paragraphs of answer, to which the defendant at the time excepts as to the ruling on each and the Court sustains the demurrer to the 3rd paragraph of said reply, to which said plaintiff at the time excepts." No ruling on the demurrer to the fourth paragraph of reply is shown, and it is impossible to determine which of the conflicting entries as to the demurrer to the third paragraph correctly represents the action of the trial court thereon. Appellant's failure in this particular to present a definite and accurate transcript of the proceedings below leaves no question before this court as to the ruling in issue. Rowan v. State (1916), 184 Ind. 399, 403, 111 N.E. 431; Weideroder v. Mace (1916), 184 Ind. 242, 247, 111 N.E. 5.
In this connection, we might add that an examination of the record discloses an absence of any evidence which has a bearing on the issues presented by appellees' third paragraph of reply, and that fact tends to support the contention here...
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