American United Life Insurance Company v. Peffley , 306 N.E.2d 131 ( 1974 )

306 N.E.2d 131 (1974)

AMERICAN UNITED LIFE INSURANCE COMPANY, Appellant (Defendant below),
v.
Becky A. PEFFLEY (Sanders), Appellee (Plaintiff below).

No. 572A220.

Court of Appeals of Indiana, Second District.

January 24, 1974.

Ralph A. Cohen, Harry T. Ice, Ice, Miller, Donadio & Ryan, Indianapolis, for appellant.

Daniel F. Cummings, Miles & Cummings, Indianapolis, for appellee.

ON PETITION FOR REHEARING

BUCHANAN, Judge.

The central factual issue in this case was whether the deceased-insured changed the beneficiary of a certain American United Life group life insurance policy on his life from Plaintiff-Appellee (Becky) to Louise, his first wife. To do so the deceased-insured would have been required to execute a Change of Beneficiary card.

Becky stipulated that a search had been made by the parties concerned for the original of a Change of Beneficiary card, "if there was a card," and maintains our opinion assumes Becky's acknowledgment of the existence of such card, a fact which Becky stoutly denies.

We held that Exhibits C, D, and E, excluded by the trial court, should have been admitted in evidence as they tended to support the execution of a Change of Beneficiary card by decedent. Our opinion carefully uses the words "diligent search" and in no way implies that Becky stipulated the existence of the Change card. The existence or non-existence of the Change card was for the jury to determine and Exhibits C, D, and E tended to support the existence and the contents of such a writing.

The stipulation was recognized for just what it was and no more, i.e., a diligent search had been conducted for an instrument which may or may not have been in existence. No semantic sleight of hand here.

Appellee's petition for rehearing is denied.

SULLIVAN, P.J., and WHITE, J., concur.