Standard Life Insurance Company v. Grigsby

• Decision Date: 26 June 1923
• Docket Number: 11,341
• Citation: 140 N.E. 457,80 Ind.App. 231
• Parties: STANDARD LIFE INSURANCE COMPANY v. GRIGSBY
• Court: Indiana Appellate Court

140 N.E. 457

80 Ind.App. 231

STANDARD LIFE INSURANCE COMPANY v. GRIGSBY

No. 11,341

Court of Appeals of Indiana

June 26, 1923

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by Katherine Grigsby against the Standard Life Insurance Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

William K. Whitfield, Otis E. Gulley and Watson & Esarey, for appellant.

Wilson & Wilson, for appellee.

OPINION

BATMAN, J.

This is an action by appellee against appellant on a policy of insurance, issued by the latter to Harry Grigsby on January 1, 1918; and in which the former was named as the beneficiary. The amended complaint contained three paragraphs. Appellant filed a motion to require appellee to make her first paragraph more specific in certain particulars, which was overruled. A demurrer was thereafter filed to each paragraph, which was sustained as to the second, and overruled as to the first and third. Appellant thereupon filed an answer in nine paragraphs. The first is a general denial. The second, third, fourth, fifth, sixth and seventh paragraphs allege the nonpayment of the premium due on said policy for November and December, 1918, and January February, March and April, 1919, respectively, and that by reason of each of such defaults, the policy in suit terminated automatically, and became void and of no effect. The eighth paragraph alleges the nonpayment of the premium due on said policy for the months of November and December 1918; the execution of an application by the assured for reinstatement, in accordance with the provisions of the policy; the receipt by appellant of the unpaid premium, upon the conditions contained in said application and policy; the denial of said application by appellant, followed by notice of such fact to the assured, and a return of the premium conditionally retained; the acquiescence of the assured in the denial of his application for reinstatement, the acceptance by him of said returned premium, and the failure of the assured to make any further payments of premium on the policy, or any tender thereof. The ninth paragraph alleges that the assured failed to pay the premium on the policy for the month of November, 1918; that upon such failure appellant credited the assured with the entire amount of the reserve due on the policy, which extended the same for a period of thirty days; that the policy lapsed, and became null and void, at the expiration of said period of extension, which was on a day prior to the death of the assured; that the assured filed his application for reinstatement, but the same was denied by appellant, and the policy was, therefore, null and void and of no effect at the time of his death. Appellee filed a demurrer to each of said paragraphs of answer, except the first, which was sustained. The cause was submitted to a jury for trial, which resulted in a general verdict in favor of appellee, and a return of answers to certain interrogatories submitted to it. Appellant filed a motion for judgment in its favor on the answers to such interrogatories, notwithstanding the general verdict, which was overruled. Judgment was thereupon rendered on the general verdict, and this appeal followed.

Appellant's first contention relates to the action of the court in overruling its motion to require appellee to make her amended complaint more specific in certain particulars. An examination of the record relating to such motion discloses that it is directed to the first paragraph only. The action of the court in overruling such motion cannot be said to constitute reversible error, unless it is shown affirmatively to have injured appellant. Western Life Indemnity Co. v. Lindsay (1920), 74 Ind.App. 122, 127 N.E. 841; Lipnik v. Ehalt (1921), 76 Ind.App. 390, 132 N.E. 410. Therefore it suffices to say that, in our opinion, no such showing is made in the instant case.

Appellant's second contention is based on the assignment of error which charges, that the court erred in overruling its demurrer "to the amended complaint." This contention cannot be sustained, under such an assignment, unless it appears that both paragraphs of the amended complaint, to which the demurrer was overruled, are insufficient. Ketcham v. Barbour, Exr. (1885), 102 Ind. 576, 26 N.E. 127; Hague v. First Nat. Bank (1903), 159 Ind. 636, 65 N.E. 907. Therefore, we will consider the sufficiency of the first paragraph of the amended complaint only. Appellant bases its objection to the sufficiency of this paragraph chiefly upon an absence of a showing of the following facts, as disclosed by the memorandum filed with its demurrer, viz.: That the assured paid the premium due on the policy in suit for the months of November and December, 1918, and months of January, February, March and April, 1919, or had a valid excuse for not so doing. It asserts, in effect, that such a showing is necessary to appellee's right of recovery, as the failure to pay such premium, in the absence of a valid excuse for not doing so, would work a forfeiture of the policy.

In determining the question presented we must bear in mind, that forfeitures are not favored in law. "Indeed, as a general rule, results flowing therefrom are regarded as so odious that a forfeiture will be enforced 'only where there is the clearest evidence that such was the intention of the parties,' and to avoid such odious result, the courts are not slow in seizing hold of such circumstances as may have been acted on in good faith and which indicate an agreement on the part of the company, or an election to waive strict compliance with the conditions and stipulations in the policy." West v. National Casualty Co. (1916), 61 Ind.App. 479, 112 N.E. 115.

The paragraph under consideration shows that the monthly installments of premium in question were not paid, and hence it only remains to be seen if a sufficient excuse therefor appears. It will be observed that the policy in suit, a copy of which is made a part of said first paragraph, contains the following provision relating to the payment of premiums "All premiums are payable in advance at the Home Office of the Company, or to an agent of the Company, upon delivery of a receipt signed by the President or Secretary, and countersigned by the agent." It will also be observed that said first paragraph alleges, among other things, that appellant had a collector in Indianapolis, and notified the assured and appellee to pay the monthly premiums on the policy to said collector at his office and place of business; that during each month of the year 1918, prior to November, appellee paid the monthly dues on said policy to appellant's collector at his place of business; that thereafter, during the months of November and December, 1918, she made repeated efforts to pay the dues on said policy to said collector,...