Union Mut. Life Ins. Co. of Portland v. Adler

• Decision Date: 17 March 1905
• Docket Number: No. 5,186.,5,186.
• Parties: UNION MUT. LIFE INS. CO. OF PORTLAND, MAINE, v. ADLER.
• Court: Indiana Appellate Court

38 Ind.App. 530

73 N.E. 835

UNION MUT. LIFE INS. CO. OF PORTLAND, MAINE,

v.ADLER.

No. 5,186.¹

Appellate Court of Indiana.

March 17, 1905.

Appeal from Circuit Court, Warrick County; E. M. Swan, Judge.

Action by Hiram J. Adler, as administrator of the estate of Leopold Adler, deceased, against the Union Mutual Life Insurance Company of Portland, Me. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John E. Iglehart and Edwin Taylor, for appellant. E. C. Henning, for appellee.

COMSTOCK, C. J.

The amended complaint was in three paragraphs, each upon a policy of insurance issued by appellant to Leopold Adler. Action was commenced in the superior court of Vanderburgh, and upon change of venue tried in the circuit court of Warrick county. It is alleged in the first paragraph of complaint: That Hiram J. Adler, plaintiff, is administrator of the estate of Leopold Adler, deceased. That said defendant was and is a corporation created, organized, and existing under and by virtue of the laws of the state of Maine. That on the 31st day of July, 1893, in consideration of the payment of the premium of $97.80 annually for a period of 20 years, unless death should sooner occur, said defendant executed its policy of insurance in writing to one Leopold Adler on his life in the sum of $3,000. A copy of the policy is made a part of the complaint as exhibit. That as a further consideration for said policy of insurance it was agreed by and between said defendant and said Leopold Adler that, should said Leopold Adler pay to said defendant three annual premiums of $97.80 each, in cash, before lapse in payment of premiums, then said policy of insurance would be secured in force for the sum of $3,000, and for a period of 7 years and 235 days, without any further payment of premium thereon. That prior to the death of said Leopold Adler said decedent paid to said defendant three annual premiums of $97.80 in cash on said policy, and thereupon ceased to pay any further premiums on said policy. That by reason of said three payments in cash of said three annual premiums on said policy, the last of which was made to and paid to said defendant on July 15, 1895, said policy of insurance was secured and continued in force for a period of 7 years and 235 days. That before the expiration of and within said 7 years and 235 days said Leopold Adler departed this life, to wit, December 20, 1901. That said decedent, Leopold Adler, and said plaintiff each duly performed all conditions of said policy on their part to be performed. That said plaintiff on December 6, 1902, gave the defendant due notice and proof of death of said Leopold Adler, and demanded payment of said policy. That said defendant on December 30, 1901, refused to pay said policy, and still refuses to pay the same, and no part of it has been paid. Wherefore he demands judgment against defendant in the sum of $3,255. The second paragraph of complaint differs from the first in the averment of the payment of four annual cash premiums, instead of three, and consequently a longer extension. The third paragraph sets out the exact manner of making payment of the fourth annual premium, the giving of the note, and treating it as payment of premium under the law. An extension of the insurance under the policy for 10 years and 116 days, it is claimed, was secured. A copy of the policy is made a part of each paragraph. A demurrer to each paragraph for want of facts was overruled. The motion to make specific said first, second, and third paragraphs of complaint was overruled. The defendant answered in three paragraphs. The substance of the first is contained in the second and third, so far as the issue relates to an extension of the life of the policy under the Maine nonforfeiture law and the construction of the table, Exhibit A, of each paragraph of the complaint. The table is again set out in the answer, and it is averred to be the agreement and provision contained in said policy upon which plaintiff relies in his amended complaint. The table is averred to be the calculation underthe Maine nonforfeiture law, which shows the period for which said insurance was secured after the payment of three annual premiums thereon, or greater, as provided by said law; and it is under the provisions of said law and under the table calculated under said law so indorsed on said contract of insurance, and part of said policy sued on, that the plaintiff claims the securing in force of the said policy for a period longer than the period for which premiums were actually paid upon said policy. Said paragraph also sets out in hæc verba the written and printed application as a part of the consideration for insurance contract. It avers the payment only of three premiums; “that at the death of said Leopold Adler the term of life of said policy as determined according to the Maine nonforfeiture law according to the age of the insured, which is averred, and the assumption of mortality and interest as set out in said law was a period of 7 years and 235 days from the date of said policy, and not from the date of lapse, at the end of which period any and all right existing in the said Leopold Adler, or in the plaintiff as his administrator, under and by virtue of said full payment in cash of the first three annual premiums due upon said policy ceased and determined, and the said Leopold Adler or the plaintiff were entitled to no further extension of time thereon, but at the expiration of said period, etc., said policy became wholly void.” It is also averred that said full period of time had expired before the insured died, and said policy was not in force when he died. The issue tendered by the said first paragraph is also tendered in the second paragraph of the answer, but, as to the distinguishing averment of the second paragraph of the complaint that four annual premiums had been paid, the second paragraph of the answer denies the fact, and avers only the first three premiums were ever paid. In other respects the second is a copy of the first paragraph of the answer. The third paragraph of the answer contains all of the material averments of the first, and in addition deals with the questions which plaintiff seeks to raise by pleading his evidence in the note which was given for the fourth premium. It denies payment in cash of the fourth premium, and denies the loan of any money as averred in the complaint. After setting out the Maine law, the table under that law, and the application, the answer continues: “Defendant further avers that the intention of the parties to the said contract of insurance, apparent from all the said writing, including the note hereinafter set out, which was executed under the provisions of the said Maine nonforfeiture law, was and continued to be that if at any time said decedent elected to refuse to pay said annual premium required as a consideration of said policy, or any note given therefor, the said policy should cease to be in force except as it might be extended by the nonforfeiture law as herein set out, or in case a note was given for any premium then, except as provided therein.” Upon the subject of the note in the transaction the answer continues: “Defendant further avers: That when the fourth annual premium upon the said policy became due said Leopold Adler did not pay the said premium, but at his request the defendant allowed him to give his note for the amount of said premium, payable in three months from date, which note is in words and figures as follows, to wit: ‘$97.80. Evansville, Indiana, July 15, 1896. For...