The Union Central Life Insurance Company v. Huyck

• Court: Indiana Appellate Court
• Writing for the Court: CRUMPACKER, C. J.
• Citation: The Union Central Life Insurance Company v. Huyck, 32 N.E. 580, 5 Ind.App. 474 (Ind. App. 1892)
• Decision Date: 29 November 1892
• Docket Number: 646
• Parties: THE UNION CENTRAL LIFE INSURANCE COMPANY v. HUYCK

32 N.E. 580

5 Ind.App. 474

THE UNION CENTRAL LIFE INSURANCE COMPANY v. HUYCK

No. 646

Court of Appeals of Indiana

November 29, 1892

From the De Kalb Circuit Court.

Judgment reversed, with instructions to grant a new trial.

W. L Penfield, for appellant.

C. A O. McClellan and D. A. Garwood, for appellee.

OPINION

CRUMPACKER, C. J.

The Union Central Life Insurance Company sued John T. Huyck upon a note for $ 367, which purports to have been given for premium upon a policy of life insurance. The note is according to the following tenor:

"$ 367. ANGOLA, IND., May 3d, 1890.

"Three months after date, for value received, I promise to pay to the order of the Union Central Life Insurance Company, at the office of U. L. Wambaugh, Angola, Ind., the sum of three hundred sixty-seven dollars (being the premium on policy No 71,331 in said company, bearing date May 3d, 1890), and with attorney's fees. If this note or any installment of interest be not paid at maturity, said policy with all conditions therein for surrender or continuation as a paid up term policy, shall without notice to any interested party, be null and void, and said premium and accrued interest thereon shall, without rebate or discount, and without reviving said policy, or any of its provisions, be collectible without relief from valuation or appraisement laws. JOHN T. HUYCK."

An answer of three paragraphs was filed, to which a several demurrer was addressed and overruled. A reply of the general denial closed the issues and the cause was tried by a jury, resulting in a verdict in favor of the defendant upon the third paragraph of his answer. Judgment was rendered upon the verdict and the plaintiff appeals.

Counsel for appellant argue questions arising upon the demurrer to the first and second paragraphs of answer, and are met by the suggestion from the other side, that inasmuch as the verdict was based exclusively upon the third paragraph, the ruling upon the demurrer to the others was harmless, if wrong. Where a demurrer is overruled to a bad paragraph of an answer containing a good paragraph, it will be regarded as a reversible error, unless the record affirmatively shows that the judgment rests exclusively upon the good paragraph. Carr v. Hays, 110 Ind. 408, 11 N.E. 25; Bowlus v. Phenix Ins. Co., 133 Ind. 106, 32 N.E. 319; Taylor v. Wootan, 1 Ind.App. 188, 27 N.E. 502.

The verdict is for the appellee specifically upon the third paragraph of answer and against him upon the others. By necessary implication the jury found all of the essential facts contained in the third paragraph to have been established, and if that paragraph shall be held good appellant was not defeated by proof of a lesser amount of facts than was necessary to constitute a complete cause of defense. Under sections 545 and 546, R. S. 1881, the jury had the right of their own motion to specify upon what particular paragraph the verdict was based, and having so done questions arising upon other paragraphs are eliminated as immaterial.

It is alleged in the third paragraph of answer that appellee was in embarrassed circumstances financially and desired to procure a loan of $ 4,000; that appellant, by its agent, came to him at his farm "and in the presence of his family urged upon the defendant to have his life insured in plaintiff's company for the sum of four thousand dollars, and offered and proposed to loan defendant four thousand dollars if he would take out a policy for that sum upon his life in plaintiff's company; that to induce defendant to take said loan and said policy plaintiff falsely and fraudulently represented to defendant by a false system of figuring that the entire cost of the premium on said policy and loan would only amount to four hundred and forty-two dollars per annum, and that afterwards the plaintiff in further pursuance of said fraudulent design for the purpose of inducing defendant to execute the note in suit falsely and fraudulently represented that by another plan in their said company they would make said loan and issue said insurance policy so that it would only cost defendant the sum of three hundred and sixty-seven dollars per annum, and defendant avers that he was and is ignorant in figures, being a farmer and entirely unfamiliar with the rules and conditions of insurance companies and their plans of doing business, and believed and relied upon said representations as being true, when in fact they were false and known to be so by plaintiff at the time. And defendant further avers that upon those conditions and under those circumstances he agreed to take out said policy and borrow said money, and thereupon the plaintiff prepared the note in suit and the application for the insurance policy and loan, and falsely and fraudulently represented to defendant that said note was for the amount of the premium on the policy and interest on said loan for one year, which representations were also false and known to be so at the time by plaintiff. And he avers that he was ignorant of the facts and was at that time blind in one of his eyes and the sight of the other was greatly impaired, and he could not read the note or other papers which were presented to him, but believed and relied upon all of said representations made to him and was thereby induced to sign and execute the note in suit and other papers at that time presented to him by plaintiff; that in a short time after the execution of said note the defendant first discovered that said representations were false and that he would be compelled to pay as premium and interest on said proposed policy, and loan the sum of six hundred and forty dollars per annum, and that the sum expressed in the note was only the amount of the premium on the insurance policy, and therefore immediately notified the plaintiff by letter that he would not take said insurance nor accept said loan, as he could not possibly make...