Western Life Indemnity Company v. Lindsay

• Decision Date: 23 June 1920
• Docket Number: 10,175
• Citation: 127 N.E. 841,74 Ind.App. 122
• Parties: WESTERN LIFE INDEMNITY COMPANY v. LINDSAY
• Court: Indiana Appellate Court

127 N.E. 841

74 Ind.App. 122

WESTERN LIFE INDEMNITY COMPANY v. LINDSAY

No. 10,175

Court of Appeals of Indiana

June 23, 1920

Rehearing denied November 16, 1920.

From Howard Circuit Court; William C. Purdum, Judge.

Action by George B. Lindsay against the Western Life Indemnity Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Thomas J. Graydon, James C. Blacklidge, Conrad Wolf and Earl B Barnes, for appellant.

John B Joyce, for appellee.

OPINION

BATMAN, J.

This action was brought by appellee against appellant to recover premiums theretofore paid by the former to the latter on a policy of life insurance issued to him. The complaint is in two paragraphs. The first alleges that the appellant is indebted to appellee in the sum of $ 719.71 for money had and received by appellant for appellee's use, on and prior to February 1, 1912, which appellant has refused and still refuses to pay appellee, although demand was made therefor before the bringing of this action, and that said sum is now due and wholly unpaid. Demand for judgment in the sum of $ 1,000. A bill of particulars was filed with said paragraph, showing that the money, alleged to have been received by appellant for appellee's use and benefit, consisted of eighty-four cash items of $ 6.30, one of which was received each successive month from February, 1905, to January, 1912, to which interest is added for the average time, making a total of $ 719.71. The second paragraph alleges that on August 18, 1891, the Piqua Mutual Aid and Accident Association, for a certain consideration, issued to appellee a policy of insurance upon his life for the sum of $ 3,000, payable on his death to his wife, Melsena Lindsay; that said policy did not contain any condition or stipulation that it should be forfeited or its value changed or diminished in any manner, except by his failure to pay all assessments and dues therein specified. Following these allegations is a copy of said policy, which contains many provisions, among which is the following:

"That the amount paid shall not in any case exceed the percentage of amount collected according to the amount of insurance specified above, on one assessment on each of the contributing members who shall pay the assessments provided by the by-laws of this association."

It is further alleged in substance, among other things, that appellee accepted said policy, and has fully performed all the obligations therein imposed upon him; that, subsequently to his said acceptance, said policy was transferred successively to the following companies, each of which assumed the obligations and liabilities thereunder: Potomac Life Insurance Company, I. O. O. F. Mutual Life Insurance Society, Mutual Life Insurance Company of Pennsylvania, Life Insurance Company of Pennsylvania, and Western Life Indemnity Company, the appellant herein; that by a certain contract of consolidation between the I. O. O. F Mutual Life Insurance Society and said Potomac Life Insurance Company certain changes were made and attempted to be made in said policy, by which the value thereof would be greatly decreased, and would continue to decrease in a certain ratio every year thereafter, until it would have no value at all, if appellee lived to extreme old age, and by which its value on February 21, 1912, was only $ 724; that said changes and attempted changes in the value of said policy were concealed from appellee by the parties to said contract of consolidation, and their successors, including appellant, so that appellee had no knowledge thereof until February 21, 1912, when appellant notified him that his said policy had been changed as aforesaid; that appellee paid to appellant, as premiums, assessments and dues on said policy, prior to February 12, 1912, the sum of $ 529.20; that, as soon as appellee learned of said facts with reference to the changes in the value of his said policy, he stopped paying any further installments of premiums, assessments and dues thereon, and demanded from appellant said sum of $ 529.20 theretofore paid by him on that account; that, if appellee had known of said changes and attempted changes in the value of his said policy, so concealed from him, he would not have paid said installments of premiums, assessments, or dues, or any of them; that appellant, at the time it received each of said installments of premiums, assessments and dues from appellee, knew of said changes and attempted changes in said policy, and knew that appellee had no knowledge thereof, and, well knowing such facts, fraudulently concealed the same from appellee, for the purpose of inducing him to make such payments. Demand for judgment in the sum of $ 1,000. Appellant filed a motion to make said first paragraph of the complaint more specific and a demurrer to said second paragraph, each of which were overruled. Appellant then filed an answer in two paragraphs, consisting of a general denial, and...