Mitchell v. Monumental Mutual Life Insurance

Opinion by

Beaver, J.,

The absence of a copy of the certificate or policy of insurance issued by the Iron Hall of Indiana is accounted for both in the plaintiff’s statement and the defendant’s affidavit of defense. If the plaintiff’s statement is correct, although the policy was surrendered, there was a verbal undertaking on the part of the defendant to pay the amount thereof in future installments. If the defendant’s contention, as set forth in its affidavit of defense, is correct, there was an actual cash payment of $312, and the new certificate issued by the Iron Hall of Baltimore as the consideration and full equivalent for the surrender and cancellation. These statements are directly contradictory of each other and raise a distinct issue of fact which a jury alone can determine.

The allegations of the affidavit and supplementary affidavit of defense taken together are equally specific in regard to the new certificate, as to the issue of which both parties agree, the defendant setting up in its affidavit of defense an application on the part of the plaintiff for the cancellation of her certificate and an agreement on its part to pay, in consideration of the said cancellation, the amount of money which had been paid by the plaintiff in assessments, upon the terms set forth in the affidavit of defense. These allegations raise another distinct issue of fact which, if the defendant’s allegations are true, would throw the plaintiff out of court.

It is true that the defendant does not distinctly allege in terms that the application for cancellation of the second certificate made by the plaintiff was then and there accepted, but the fact that she agreed to accept therefor the amount of $96.00 payable in installments and that she has received three installments, amounting to $31.20, would seem to establish a necessary inference that her application had been favorably regarded and acted upon by the defendant.

We regard the two affidavits, taken together, as sufficient to carry the, case to a jury, if the defendant’s proofs support the allegations contained therein.

Judgment reversed and a procedendo awarded.