Sickels v. Aetna Securities Co.

• Decision Date: 02 June 1942
• Docket Number: 27692.
• Citation: 41 N.E.2d 947,220 Ind. 347
• Parties: SICKELS et al. v. AETNA SECURITIES CO. et al.
• Court: Indiana Supreme Court

41 N.E.2d 947

220 Ind. 347

SICKELS et al. v. AETNA SECURITIES CO. et al.

No. 27692.

Supreme Court of Indiana

June 2, 1942

Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.

McTurnan & Higgins, Lawrence H. Hinds, and James P. Robinson, all of Indianapolis, and Homer Elliott, of Martinsville, for appellants.

Noel & Armstrong and Matson, Ross, McCord & Ice, all of Indianapolis, and Charles H. Foley, of Martinsville, for appellees.

SHAKE Judge.

This action was instituted by the appellants in the Superior Court of Marion County. The appellees joined in an amended plea in abatement alleging that all of them were non-residents of Marion County except the Indianapolis Life Insurance Company and that it had no connection with the subject matter of the action but had been made a party defendant for the sole purpose of conferring jurisdiction on the Marion county court. After hearing evidence the court overruled the amended plea in abatement and a motion for a new trial of the issue formed thereon. The venue of the action was, thereupon, changed to the Morgan Circuit Court.

Before the submission of the cause for trial the appellee Indianapolis Life Insurance Company moved to require the appellants to elect upon which of the theories stated in the single paragraph of their amended complaint they would rely. The court sustained the motion and the appellants elected 'to proceed upon the theory of rescission of the contracts described in the complaint and a recovery of the consideration paid'. While the first witness was on the stand, the appellants asked leave to modify their said election as follows: 'Recovery of consideration as used in the language of the election is and shall be taken to mean recovery of damages for the wrongful acts constituting and causing plaintiffs' loss'. The motion to modify the election was denied and the court proceeded with the trial. At the conclusion of the appellants' evidence a verdict was directed in favor of the appellees Ora L. Wildermuth, Fred O. Wildermuth, Xen McNair, Inc., and Indianapolis Life Insurance Company. The submission of the cause was then set aside and a new trial granted on the issue formed on the amended plea in abatement which had previously been denied by the Superior Court of Marion County. Then, applying the evidence heard on the principal trial, the court abated the action as to the remaining defendants Aetna Securities Company and Xen L McNair. There was judgment that the appellants take nothing a motion for a new trial was subsequently denied, and this appeal followed.

The propositions which we have been asked to consider are involved, multifarious, and confusing. The motion for a new trial alone recited 99 alleged errors when one, concisely stated and supported by sound reasoning, would have been sufficient to accomplish a reversal. To adequately discuss all of the questions attempted to be presented would require an opinion longer than the appellants' 340 page brief. We have, therefore, felt obliged to summarize in our own way and without regard to the manner of presentation what we perceive to be the substantial questions. These are:

(1) Whether reversible error was committed in requiring the appellants to elect the theory upon which they would rely and in refusing them leave to amend the election made;

(2) Whether the trial court erred in directing a verdict in favor of the appellees Ora L. Wildermuth, Fred O. Wildermuth, Xen McNair, Inc., and Indianapolis Life Insurance Company; and

(3) Whether the Morgan Circuit Court had power to grant a new trial on the issue formed on the appellees' amended plea in abatement which had been denied by the Superior Court of Marion County before the change of venue, and whether error was committed in abating the action as to the appellees Aetna Securities Company and Xen L. McNair. These matters will be considered in the order stated.

When a contract has been induced by fraud, the injured party may pursue one of two remedies. He may affirm the contract and sue for damages occasioned by the fraud or he may disaffirm the contract and sue to recover the compensation paid. He cannot maintain both of these actions simultaneously in the same paragraph of complaint. Under our code it is necessary for a pleader to adopt and conform to some definite theory. If doubt exists as to what the theory is, the court will determine it from the general scope and tenor of the pleading. These rules are too well known to justify the...