Robison v. Wolf

• Decision Date: 26 November 1901
• Citation: 27 Ind.App. 683,62 N.E. 74
• Parties: ROBISON v. WOLF.
• Court: Indiana Appellate Court

27 Ind.App. 683

62 N.E. 74

ROBISON

v.WOLF.

Appellate Court of Indiana.

Nov. 26, 1901.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by George Wolf, as receiver of the Globe Accident Insurance Company of Indianapolis, against Edward J. Robison. Judgment for plaintiff, and defendant appeals. Affirmed.Chas. F. Coffin and Henry M. Dowling, for appellant. E. A. Brown and Carson & Moore, for appellee.

ROBY, J.

Appellee, as receiver of the Globe Accident Insurance Company of Indianapolis, brought this action to recover the annual premium alleged to be due and unpaid upon policy No. 24,803, issued to appellant. A demurrer was overruled to the complaint, and an answer of general denial filed (a second paragraph of answer was also filed, but its averments are not material at this time); trial had; verdict and judgment for appellee for $5.25. The evidence shows that the Globe Accident Insurance Company was organized January 30, 1892, under the act of March 9, 1883, and acts amendatory thereto (Burns' Rev. St. 1901, §§ 4897, 4898, 4900-4903). Its articles of association are in part as follows: “Such indemnity and benefit to be provided by assessment paid by members, each of whom shall, during the continuance of his certificates of membership, be a full member of this corporation, and entitled to all its rights and privileges. No indemnity nor benefit shall exceed the amount provided in the member's certificate of membership, nor the amount of one assessment of the membership existing at the time of the injury; and no member, nor any beneficiary of any members, shall under any circumstances have any right, title, or interest to or in any fund of the corporation in excess of said amount. *** The funds of this corporation shall be provided for by admission fees, dues, and assessments. And no part of the expense fund shall be used to pay death or disability claims, and no part of the indemnity fund shall be used to pay expenses.” In accordance with the power conferred by section 2 of the act, certain by-laws were adopted by the company. These by-laws are in part as follows: “The object of this company is to insure its members against bodily injury caused solely by external, violent, and accidental means, and to pay them or their beneficiaries, within the limitations of their contracts or insurance, indemnities or benefits to be provided by assessments equitably levied upon the entire membership.” “Said directors shall receive no salary or other compensation for their services, but shall serve gratuitously, as a favor to the other members.” “Every member shall be a full member of this company, entitled to all its rights and privileges as fully and completely as any other member. Each member shall be advisory agent of this corporation, whose duty it shall be to fully report to the president all information coming to his attention of value to the company, and especially all information of every character whatsoever concerning any injury received by insured members of the company.” “This company shall be charged with and responsible for only the net cash actually received by it, and nothing but the actual cash shall be considered payment.” On November 23, 1895, appellant made his application for membership in said company. The application was “filled out” by the applicant. Most of the matter stated therein is not relevant at this time. Parts of the application that may be so regarded are as follows:

“4803-10-23-E. Accepted. Policy No. 24,803. Agency of Pd. 11/27/95 W. A. W. Application for $10,000 S. G. C. policy. Amt. of premium, 25, payable annually to the Globe Accident Insurance Company.”

On November 25th a policy was issued, parts of which are as follows:

“No. 24,803. Maximum weekly indemnity, $50 per week. Maximum death benefit, $10,000. The Globe Accident Insurance Company of Indianapolis. In consideration of the warranties contained in the application for this policy, and of the annual premium of twenty-five dollars, has accepted Edward J. Robison.”

On the same day the policy was issued, applicant paid the company $25, and received its receipt therefor. On November 25, 1896, he also paid $25 to it, receiving a receipt therefor. On November 24, 1897, he paid to it $19.75, and received a receipt for $25, in terms as follows:

“Renewal term receipt. Policy No. 24,803. Maximum death benefit, $10,000. Renewal receipt No. 1,505. Amount of Premium, $25.00. The Globe Accident Insurance Company of Indianapolis, Ind., acknowledges the receipt from Edward J. Robison of twenty-five dollars, and hereby continues in force policy No. 24,803, issued by the Globe Accident Insurance Company of Indianapolis, Ind., from 12 o'clock noon of the date hereof to 12 o'clock noon of the 25th day of November, 1898. Dated this 24th day of November, 1897. W. A. Walker, Secy., per Brown, Cashier.

+--------------------------+
                ¦Amount of premium ¦$25 00 ¦
                +------------------+-------¦
                ¦Renewal of Com    ¦5 25   ¦
                +------------------+-------¦
                ¦Cash received     ¦$19 75”¦
                +--------------------------+
                

It was found by the jury that appellant had been insured, by virtue of such payment, during the year ending November 25, 1898. If the entire premium were unpaid, and no receipt had been executed, there could be no doubt of the receiver's right, under the proper order of the court appointing him, to recover it. The fact that a partial payment has been made thereon cannot affect his right to collect the unpaid portion. The effect of a receipt is to put the burden of proof upon the person denying its correctness, but it may be explained, qualified, or contradicted by parol. Railroad Co. v. Crumbo, 4 Ind. App. 456, 30 N. E. 434;Moore v. Korty, 11 Ind. 342. There is no dispute as to the facts in this case. Appellant testified to a cash payment of $19.75. Under the by-laws, to the terms of which he agreed to conform when he became a member, “nothing but the actual cash shall be considered payment.” There is no evidence that the residue of the annual premium has been paid, but, as equivalent thereto, the following claim is made in appellant's brief: “On the - day of November, 1897, the company paid to the appellant the sum of $5.75, as his share of the renewal fund. The appellant thereupon paid this back to the company in full discharge of all payments due upon his third-year premium of $25, $19.75 of which had already been paid, and the accounts between insurer and insured were balanced. Of course, this circuitous method of double payment was dispensed with, and a credit entered on the company's books effected the same object. But the result was the same as though an actual transfer of fund had been made. When appellant accepted the special contract which provided for this credit, he thereby constituted the company his agent to receive this expected dividend,' and, in its capacity as his agent, to repay it to the company, as the insurer, and thus discharge his debt.” In order to avoid confusion, it is well to analyze the foregoing. It amounts to this: That the Globe Company had collected $5.25 for appellant from some one, and treated such amount as cash applied. This brings us to the root of the trouble, and the further inquiry is as to how the company became possessed of appellant's money, from whom was it collected, and what for? On the same date of the policy, and as part of the same transaction, the following writing was made:

“Special Globe Combination Contract. (Limited to 500.) The Globe Accident Insurance Company of Indianapolis, Indiana, in consideration of Edward J. Robison, of Indianapolis, Indiana, having paid a full annual premium of twenty-five dollars on a policy of ten thousand dollars insurance in said company, numbered 24,803, hereby selects said Edward J. Robison as one of five hundred policy holders, each to be insured for a like amount, to participate in a special renewal dividend, consisting of 5 per cent. of the gross premiums on all insurance in force written in the state of Indiana for ten years from November 1, 1895, exclusive of the first-year premiums, on which, in the aggregate, a full annual premium has been paid within the twelve months preceding the distribution of said renewal dividend, according to the following terms and conditions: At the end of each calendar year after the first, while the said policy remains in force, the said company agrees to credit the said Edward J. Robison with his pro rata share of said renewal dividend according to the number of said policy holders whose policies are then in force; said credit to be applied towards the payment of the ensuing year's premium upon said policy No. 24,803, beginning with the third; but no such annual credit shall be given in excess of the amount necessary to pay the annual premium on said policy. In witness whereof, the Globe Insurance Company has caused this contract to be signed by the president and secretary at its office in the city of Indianapolis, Indiana, this 25th day of November, 1895.”

By the terms of this instrument, appellant became one of not more than 500 persons for...