Standley v. Northwestern Mutual Life Ins. Co.

• Decision Date: 07 May 1884
• Docket Number: 10,331
• Citation: 95 Ind. 254
• Parties: Standley v. Northwestern Mutual Life Insurance Company
• Court: Indiana Supreme Court

95 Ind. 254

Standley v. Northwestern Mutual Life Insurance Company

No. 10,331

Supreme Court of Indiana

May 7, 1884

From the Cass Circuit Court.

Judgment affirmed.

D. C Justice and D. Turpie, for appellant.

T. A Hendricks, A. W. Hendricks, C. Baker, O. B. Hord, A. Baker and E. Daniels, for appellee.

OPINION

Elliott J.

The appellee's complaint is based on a note and mortgage executed by the appellant. The answer is in several paragraphs, and, without interposing a demurrer, the appellee replied.

There are several good paragraphs of answer, and conceding, but by no means deciding, that the sufficiency of an answer may be challenged for the first time by the assignment of errors, still the contention of appellee can not prevail, for even in the case of a complaint one good paragraph will repel an assignment of error alleging that the complaint does not state facts sufficient to constitute a cause of action. If there is but one answer, and that is clearly bad, then, perhaps, the court may give judgment on the pleadings, but where there are good paragraphs of an answer this can not be done.

The appellee chose to reply to all of the answers without testing their sufficiency by demurrer, and now argues that it may avail itself of the demurrer to the reply filed by the appellee. The case is entirely unlike that of a defendant who has a bad answer and complains of a ruling holding good a bad reply. Clearly enough his case is well disposed of by informing him that a bad reply is good enough for a bad answer. So, too, the present case is essentially different from that of a plaintiff asking a reversal, where a demurrer has been sustained to a bad reply to a bad answer. In this case the ruling is invoked by a party who secured all he asked and who took no exception, but relies upon an exception taken by his adversary. Our statute is very careful to require that parties who desire to save a question upon a ruling must reserve an exception, and in a very great variety of cases the court has given this statute full and strict effect. There is good reason for the rule. The trial court and the adverse party should be informed that the ruling is to be contested, and the appellate court should be enabled to see from the record what rulings were contested in the trial court. Again, parties ought not to be allowed to shift ground and contest in the Supreme Court points not regularly contested in the lower. The spirit of our statute, and the effectiveness and consistency of our code system of pleading, require that one who secures exactly the ruling he asks, and who takes no exception, should not be allowed to complain on appeal that something more favorable than he asked was not granted him. It would be a strange perversion of our code practice for the appellate court to compel a trial court to give a plaintiff a new and more favorable ruling than he asked. Such a practice would entail an unjust burden upon the court, break down the provision of our statute requiring parties to except to such rulings as they deem erroneous, and make uncertain all the pleadings in the case. We examined this question with care in Scheible v. Slagle, 89 Ind. 323, and reached the same conclusion which we now declare. This conclusion is not in conflict with any of our cases.

The cases of Wiley v. Howard, 15 Ind. 169, and Reed v. Higgins, 86 Ind. 143, decide that it is error to sustain a demurrer to a reply where the answers are bad. The cases of Ashley v. Foreman, 85 Ind. 55, Starkey v. Neese, 30 Ind. 222, Knippenberg v. Morris, 80 Ind. 540, Richardson v. Seybold, 76 Ind. 58, AEtna Ins. Co. v. Baker, 71 Ind. 102, and Menifee v. Clark, 35 Ind. 304, hold that where the answer is bad there is no error in overruling a demurrer to the reply although it is also bad. It is plain that none of these cases touches the question here, for the appellee is not complaining that a demurrer was sustained, nor the defendant that a demurrer was overruled. The complaint is, that the court did not volunteer to give the plaintiff more than it asked. As the appellee was content with having the reply held good, there ought not to be a shifting of ground in the appellate court, and a demand for something not heard of in the court below. It was only after a long struggle that the court went as far as it did in the cases we have cited, for all our earlier cases held that a demurrer to the reply did not go back to the answer. Johnson v. Stebbins, 5 Ind. 364; Mason v. Toner, 6 Ind. 328; Gimbel v. Smidth, 7 Ind. 627. The rule has been extended as far as it can be without producing great confusion and injustice, and we do not think it should be so far extended as to yield the appellee on appeal what he did not seek in the trial court. The principle which we recognize and apply was declared in Haymond v. Saucer, 84 Ind. 3, where it was said: "Counsel for the appellant claim, 'that the sufficiency of the complaint is called in question by the demurrers to the answers'--there having been separate answers addressed to each paragraph severally, to which answers demurrers were filed and overruled. It is plain that those rulings do not reach back to the complaint. If the demurrers had been sustained, and the appellant had assigned error upon the rulings, the respective paragraphs of the complaint would have been brought under consideration, so far, at least, as necessary to determine the sufficiency of the respective answers. So too, if the appellee had, in this case, assigned cross errors upon the overrulin of the demurrers to the answers." Where the plaintiff's complaint and reply are left standing, he gets all that he is entitled to have and all that he asks; if he thought himself entitled to something more, he should have asserted his rights at the proper time, and have saved them by an exception as the statute requires. Where a plaintiff defends a ruling on the reply by asserting that the answer to which it was addressed was bad, he occupies a very different position from that occupied when he assails an answer, unchallenged in the court below, for the purpose of securing a ruling in the appellate court not sought in the lower. So, too, does this appellee stand in a very different position from that of a plaintiff warding off an attack on his reply by showing that the answer was bad. Here the attempt is not to protect the reply, for it is not assailed, but the attempt is to secure a new ruling on one paragraph of several, where no question was made or reserved in the trial court. If the appellee were simply defending the reply and seeking to prevent a reversal on the ground of its sufficiency as a reply to a bad answer, we should be confronted by a very different question from that presented by the record.

Leaving now the question of pleading, we come to the question presented by the ruling on the demurrer to the evidence, remarking, however, that it is very doubtful whether the demurrer to the evidence did not waive all objections made by the demurrers to the pleadings. Lindley v. Kelley, 42 Ind. 294. The answers of set-off and recoupment were not proved, because, conceding the evidence sufficient in all other particulars, there was no evidence that any damages resulted from the breach of the contract insisted upon by the appellant. Granting that the appellant proved that he had a contract entitling him to a paid-up policy, and granting, also, that he had performed all his part of the contract, still he proved no damages, because he did not show that the policy would have been of any value. As he gave no evidence of value, the presumption is that the damages were merely nominal, and it is well settled that a failure to award nominal damages will not warrant a reversal.

Premiums paid to secure insurance can not be recovered if the risk has once attached. If a policy is valid in its inception, then the company can not be required to refund the premiums received, although it may subsequently wrongfully attempt to declare a forfeiture. Continental Life Ins. Co. v. Houser, 89 Ind. 258; Bliss Life Ins. 750; May Ins., sections 567, 568, 569. The appellant could not, therefore, set off or recoup the premiums paid by him, although it should be granted that the company committed a wrong in refusing a paid-up policy and in denying the contract claimed by appellant.

Where an assured is entitled to a policy under his contract with the company, he may maintain a suit in equity to enforce specific performance of the contract. The suit is in all its essential features a suit for specific performance, and may be maintained in cases where the courts would entertain suits of a similar nature. Hayner v. American, etc., Co., 69 N.Y. 435; Cohen v. New York, etc., Co., 50 N.Y. 610; S C., 10 Am. R. 522; Day v. Connecticut Life Ins. Co., 45 Conn. 480; S. C., 29 Am. R. 693; Pomeroy Spec. Perf., section 16. But in holding, as we do, that a suit for specific performance of a contract to execute a paid-up policy of insurance may be maintained, we are not necessarily carried to the conclusion that the right to compel the execution of such a policy may be made available, as a counter-claim, in a suit brought to foreclose a mortgage executed to secure a loan of money.

Assuming that the evidence shows that the appellant had a contract entitling him to a paid-up policy, and that he performed all his part of that contract, and was entitled to have it specifically performed, the question still remains whether the right to demand specific performance of such a contract can be properly asserted in a suit to foreclose a mortgage given to secure a loan.

The evidence shows that the two transactions were legally distinct and different, and that each stood upon its own independent consideration. In the...