Walker v. Larkin
| Decision Date | 03 February 1890 |
| Docket Number | 14,726 |
| Citation | 26 N.E. 684,127 Ind. 100 |
| Parties | Walker v. Larkin et al |
| Court | Indiana Supreme Court |
From the Orange Circuit Court.
Judgment affirmed.
G. W Friedley, J. Giles and W. H. Edwards, for appellant.
M. F Dunn and G. G. Dunn, for appellees.
This was an action instituted by the appellees in the Lawrence Circuit Court against the appellant and the Northwestern Mutual Life Insurance Company, on a policy of insurance issued on the life of the appellant. The insurance company upon a proper pleading for that purpose, was permitted to pay into court the amount due on the policy of insurance, and was discharged.
The venue of the cause was changed to the Orange Circuit Court, where the appellees filed an amended complaint, which alleges, substantially, that the insurance company issued to the appellant the policy of insurance in suit for one thousand dollars on the 17th day of December, 1867, payable in nineteen years from date, in consideration of the payment of twenty-five dollars and thirty-three cents, and the quarterly payment of eleven dollars and thirty-six cents for a period of nineteen years; that, on the 31st day of January, 1870, the appellant assigned said policy to the appellees to secure the payment of two judgments against him in favor of the appellees, at which time it was agreed that the appellees should pay the premiums thereafter to accrue on said policy, and should be paid out of the proceeds of said policy, when collected, the amount of said judgments, and should be repaid the amount of the premium so paid by them, with the interest thereon; that they paid premiums to the amount of $ 800, which, together with said judgments, amounts to the sum of $ 1,070.59, which sum exceeds the amount due on the policy; that by reason of these facts the appellant has no interest in the money paid into court by the insurance company.
The court overruled a motion, made by the appellant, to strike out so much of the complaint as alleged the payment of premiums by the appellees. It also overruled a motion to compel the appellees to make the complaint more specific, by alleging whether or not the agreement to pay premiums was in writing.
The court also overruled a demurrer to the complaint, and appellant excepted.
These several rulings are assigned as error.
Overruling a motion to strike out parts of a pleading is not available error. Keesling v. Watson, 91 Ind. 578; McFall v. Howe, etc., Co., 90 Ind. 148; Losey v. Bond, 94 Ind. 67; Morris v. Stern, 80 Ind. 227.
The complaint is sufficiently definite in the matter of which complaint is made. A contract not alleged to be in writing is conclusively presumed to rest in parol.
The only objection urged to the complaint is that it does appear therefrom that the appellees had an insurable interest in the life of the appellant.
It appears from the complaint that the appellant was indebted to the appellees in the sum of one hundred and eighty-nine dollars, the amount of two several judgments in their favor against him. The policy was assigned to them as collateral security for the payment of these judgments. The authorities all agree that the creditor has an insurable interest in the life of his debtor. Amick v. Butler, 111 Ind. 578, 12
N.E. 518. In that case it was said by this court: "That a creditor has an insurable interest in the life of his debtor has never been controverted."
The court did not err in overruling the demurrer of the appellant to the complaint.
The appellant filed an answer in six paragraphs.
The third paragraph avers, substantially, that the assignment of the policy in suit was procured as follows: That the appellees, to induce the appellant to assign the same, charged him with being guilty of some crime, or with being about to leave the State of Indiana with the intent to defraud creditors, or some offence against the laws of the State of Indiana, the nature of which offence he is not now able to give, as the record of such proceeding has been totally destroyed; that they had him restrained by force of his liberty, and threatened to have him arrested, and did have him under arrest, and threatened to have him imprisoned on some charge; that at the time he was under such arrest and restrained of his liberty, he was sick and unable to see or employ counsel or to look after his case, and the appellees threatened to have him thrown into prison if he did not execute said assignment; that to free himself, and to avoid arrest and imprisonment, and without any consideration therefor, and against his will, he signed said assignment; that he was wholly innocent of said charge, and the same was made without any foundation in fact.
The sixth paragraph of the answer set up the six years' statute of limitations as to the premiums paid by the appellees...
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