65 Ind. App. 502 | Ind. Ct. App. | 1917
Lead Opinion
The complaint, in substance, alleges that on January 3, 1913, Lytel Bair owned a frame dwelling House in Summitville, Indiana, and on that day for a cash premium of $7.50, appellant insured the same for $600 for three years from that date; that appellee duly performed all the conditions of the policy of insurance so issued to him, and on the night of August 29, 1913, said building was totally destroyed by fire; that at the time of the fire the building was owned by said Bair and
The policy was made a part of the complaint by exhibit, and, among other terms, provided that:
if the property “be or become mortgaged or encumbered, or if the interest of the assured be other than unconditional or sole ownership, or if the policy be assigned, or if the risk be increased by any means within the knowledge of the assured, then in each and every one of the above cases this entire policy shall be null and void unless otherwise provided by agreement endorsed herein.
*509 “No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be subject to agreement endorsed hereon or added hereto and as to such provision and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached hereto.”
The policy further provided that in case of loss the assured should within fifteen days give notice in writing to the company, and within sixty days after loss should render a statement to the company, signed and sworn to by the assured, “stating the interest of the assured and all others in the property, the cash value of each item thereof and the amount of loss thereon, all other insurance, whether valid or not, covering any part of said property, and shall furnish an itemized statement of loss and damage to any building described in the policy; * * *.
The policy further stipulated that to secure mortgages, if desired, the policy should be made, payable on its face to such mortgagee, as follows: Loss, if any, payable to John Doe, mortgagee.”
The memorandum accompanying the demurrer states that the complaint does not show that the plaintiffs other than Lytel Bair have any interest in the insurance contract and that a joint action cannot be maintained; that none of the plaintiffs are shown to have an insurable interest in the property covered by the policy; that it is not shown that any amount is due any of the plaintiffs on the policy; that it does not appear that any of the plaintiffs have furnished the proof of loss required by the policy and by the laws of the state; that it affirmatively appears that Lytel Bair has himself breached the contract sued upon.
This rule has been specifically applied in cases involving loss by fire where the owner of the property insured and the holder of encumbrance thereon joined in a suit upon the policy against the insurance company, it appearing that the total loss exceeded the amount of the encumbrance. §§251, 263 Burns 1914, §§251, 262 R. S. 1881, Home Ins. Co. v. Gilman (1887), 112 Ind. 7, 9, 13 N. E. 118; Franklin Ins. Co. v. Wolff (1899), 23 Ind. App. 549, 551, 54 N. E. 772; Troxel v. Thomas (1900), 155 Ind. 519, 522, 58 N. E. 725; Judy v. Jester (1912), 53 Ind. App. 74, 85, 100 N. E. 15.
It is contended by appellant that the complaint shows upon its face a breach of the insurance contract by the execution of the mortgage by appellee Lytel Bair to his coappellees, and that the averments which show a request to have the policy made payable to the mortgagees as their interests may appear and the failure of appellant to comply with such request, fall short of showing any right of action in appellees; that, if there is any liability, before a recovery can be had there must be a reformation of the contract to make the policy payable to the mortgagees as their interests may appear; that the terms of the policy require the interest of the mortgagees to be shown upon the policy itself.
In Sourwine v. Supreme Lodge, etc., supra, this court considered a case in which a member of the endowment rank of the K. of P. lodge complied with all of the conditions under which he was entitled to transfer to the 'fourth class,- which paid a larger indemnity than the class from which he sought to transfer. He took this action in March, 1889, and died on May 5, 1892, without having obtained the transfer. His beneficiaries brought suit to recover on the ground that the insured was equitably a member of the fourth class, but the trial court sustained a demurrer to the complaint on the theory that he was not actually a member of such class at the time of his death. The court by Gavin, J., said: “Clearly, Croasdale possessed all the necessary qualifications, complied strictly with the requirements of appellee’s constitution, and was in fact entitled to be, and under the allegations of the pleadings, ought to have been, transferred. Appellee’s position is that nevertheless 'he was not transferred in fact, and could not be without the approval of the medical examiner in chief, and for this reason his beneficiaries cannot recover. It is further contended that he had, by not asserting his legal right to the transfer and not tendering the dues, acquiesced and abandoned his right to the transfer. The constitution and by-laws of such an organization are elements of the contract of insurance. * * * Under the averments, the action of the medical examiner in chief, in rejecting the application solely by reason of Croasdale’s age, was in direct violation of the constitution. * * * Having done everything
“Our conclusion, therefore, is that the trial court erred in sustaining the demurrer to the complaint.”
In Modern Brotherhood v. Matkovitch, supra, this court held that there could be a recovery by an intended beneficiary where there had been an ineffectual effort to have such person named as the beneficiary in the certificate and such change had been prevented by the wrong of the beneficiary named in the certificate.
Our Supreme Court, in Isgrigg v. Schooley, supra, made a similar holding, and on page 99 said: “The assured had the right to make the change; he did all that was within his power to do in compliance with the by-laws governing such change; the appellee, the beneficiary named in the original certificate, prevented him from a formal compliance in the delivery of the certificate, and equity will regard that as done, since he had the right to its possession, and the right to have delivered it, but could not do so by reason of the acts of the appellee, and equity requires no impossibilities.”
We therefore conclude that the averments are sufficient to avoid the defense above indicated and to warrant the maintenance of the suit by appellees.
The eighth paragraph of answer sets up facts to show that after the policy in suit was written and before the loss by fire of the property insured, in a suit for divorce by the wife of appellee Lytel Bair,- she obtained a money judgment against him which was an unsatisfied encumbrance on the property at the time of the fire; that appellant had no notice or knowledge thereof prior to January 5, 1914; that on or about January 6, 1914, appellant notified said appellee of its intention to rescind the contract of insurance, and then and there tendered him the amount of premium paid and interest thereon, in all the sum of $10 in gold coin, lawful money of the United States which he refused to accept, and same was thereupon paid into court for his benefit.
The ninth paragraph of answer alleges that, after the execution of the policy in suit, the risk thereof was increased to the knowledge of appellee Lytel Bair, in violation of the terms of the policy, which provided that in such case the policy should be and become void, unless otherwise provided by agreement endorsed on the policy; that the risk was so increased by the execution of the mortgage mentioned in the complaint and by the rendition of judgments against appellant which became liens on the property insured, after the execution of the policy, and so remained at the time of the fire, all without appellant’s knowledge or consent, and without consent or agreement thereto endorsed on the policy. The paragraph contains the same averments as the eighth, relating to when it obtained knowledge of the encumbrances and its notice of rescission and tender of the premium.
What we have said in considering the complaint with reference to the allegations relating to the mortgage and the alleged consent thereto by appellant disposes of the allegations in the answer which count upon the mortgage.
Under the foregoing authorities, we hold that the court did not err in sustaining the demurrer to said paragraphs of answer.-
The jury by their answers to interrogatories found that the policy in suit was issued on January 3, 1913, and that on January 27, 1913, appellee Lytel Bair executed a mortgage on the property to his coappellees; that the house insured was destroyed by fire on August 29, 1913, and the aforesaid mortgage was then in force; that neither appellant nor anyone in its behalf ever endorsed on the policy consent of appellant to the execution thereof; that Andrew F. Kaufmann was appellant’s agent at Summitville at and subsequent to the time the policy was executed, and his authority as such was in writing and provided that he had power “to effect insurance upon property located within the limits or in the vicinity of said city, to countersign, issue and renew policies of insurance when assigned by the officers of the company and to consent in writing to assignments and transfers thereof and to collect
“To Continental Insurance Company, New York City.
“You Are Hereby Notified, That on the night of August 29, 1913, ■ the dwelling house situated in Summitville, Madifeon County, Indiana and covered by an insurance policy issued by you, said policy being no. D 7320, in the amount of ($600) six hundred .dollars, was totally destroyed by fire; that at the time of said fire, the undersigned, Lytel Bair, was the owner of said house in fee simple, and was the owner of the real estate upon which the same*518 was situated, that the same was encumbered by the following mortgages;
Mortgage to Warner & Sons, in sum of $18.75;
Mortgage to George Bair, in sum of $140;
Mortgage to Pearl McLeod in sum of $14.30;
Mortgage to James L. Noble in sum of $50;
Mortgage to Summitville Bank, of Summitville, Indiana, in sum of $100;
Mortgage to James F. Sparks, in sum of $22.07;
Mortgage to W. A. Kittinger, in sum of $25;
Mortgage to Alfred Ellison, in sum of $20.
That said building, at the time of said fire, was fairly and reasonably worth seven hundred dollars ($700.00) and the assured lost by reason of said fire the sum and amount of seven hundred dollars, ($700.00).
“And the said Lytel Bair, being duly sworn, upon his oath, says that the above and foregoing is true.
“Lytel Bair.
“Subscribed and sworn to.”
That no other or different proof of loss or written communications or documents were furnished appellant by appellee; that on October 11, 1913, appellant by registered mail sent to said Bair a letter which was received by his duly authorized attorneys at Anderson, Indiana, on October 13, 1913, and in substance stated that the proofs of loss had been received and were rejected because of: (1) Failure to furnish a detailed schedule of claim; (2) failure to state if any other person had any interest in the property; (3) failure to state knowledge and belief as to time and origin of the fire; (4) the fact that without the knowledge or consent of appellant encumbrances had been placed on the property insured.
The finding also shows that this action was begun on October 14, 1913, and appellant did not prior thereto deny any liability for the loss; that appellant promised to pay money due on the policy to persons other than appellee Lytel Bair, viz., to the mortgagees; that on November 6, 1913, appellant notified appellee Lytel Bair
Appellant urges two principal contentions to show that the answers to the interrogatories are in irreconcilable conflict with the general verdict and entitle it to judgment thereon, viz.: (1) Failure to furnish the requisite proof of loss; and (2) the mortgaging of the property without appellant’s consent duly indorsed on the policy.
The first proposition is based upon the provisions of the policy and the statute. Acts 1911 p. 525, swpra. Where the policy provides for preliminary proofs of loss, the statute requires the insured to furnish such proof within sixty days, and further provides that: “If for any reason the insurance company shall claim that such preliminary proof of loss is defective, it shall within ten days after the receipt thereof, notify in writing the insured * * * of the defects claimed, specifically stating them.” The statute then requires the defects pointed out to be remedied by verified amendments, “complying with such objections as far as practicable, within ten days * * * Qr if unable to comply with such objections, the insured or the party making such proof of loss shall present to the company an affidavit to that effect,, stating therein why such objections cannot be complied with.”
The answers show that proof of loss was made and objections thereto by the company returned within the time prescribed by the statute, and that no further proofs or documents were furnished by appellee, but the answers also show that shortly thereafter appellant gave notice of its decision to rescind the policy and tendered back the full amount of the premium paid with interest. The company thus forcibly expressed
The law does not require the doing of a useless and unnecessary thing, and under such conditions any further proofs or statements from appellee would not have changed the attitude of the parties to this suit on the ultimate question of appellant’s liability. Furthermore, we find no provision in the policy or the statute requiring the insured to state his knowledge and belief as to the time and origin of the fire.
The second objection relating to the encumbrance of the property without procuring the written consent of appellant thereto, indorsed upon the policy, presents a more serious and substantial question. In passing on the sufficiency of the complaint we have held the allegations showing notice to appellant of the execution of the mortgage and an agreement by.it to properly indorse the policy payable to the mortgagees as their interests should appear, were sufficient to show liability, notwithstanding the policy was not actually so indorsed.
The finding of facts also shows that the policy in suit was issued by appellant at Summitvillé, by its local agent, Andrew F. Kaufmann, who had an office there during all of the year 1913. Appellant contends that the power of the agent is governed by his written authority issued to him by the company; that as such agent he had no power to waive any provision of the policy and in no event could appellant be bound by any waiver of conditions not in writing and duly indorsed on the policy. Appellee, in effect, contends that as local agent of appellant with authority “to countersign, issue and renew policies, * * * to consent in writing to assignments and transfers thereof and to collect premiums,” under the laws of this state, Kaufmann, the local agent ,at Summitville, was the agent of appellant in the transactions relating to the policy in suit and within such limitations his acts and omissions relating thereto were the acts and omissions of appellant and binding upon it; that, in addition to the express authority given Kaufmann, by permitting him to issue policies, collect premiums, and maintain an office to transact the business of the company at Summit-ville, the company thereby held such agent out to the public and to appellees as having authority to bind it in all matters appertaining to the issuance, assignment, transfer, and indorsement of the insurance policies is
We have already held that the mortgagee has such an interest as to make him a necessary party to the suit, and a proper party plaintiff. But it has also been held that where the interest of the mortgagee exceeds the amount of the loss, the mortgagee may maintain the suit in his own name and make the owner of the property a party defendant to the suit. Franklin Ins. Co. v. Wolff, supra.
It is not denied that the agent is given authority to consent' in writing to the assignment of a policy and the transfer of all the interest of the insured to a purchaser. Such being the case, it is but reasonable to suppose that the parties intended to cover instances of partial and conditional assignments of the interest of the insured.
Having concluded that the agent had express authority in the matters relating to the mortgage upon the property covered by the policy in suit, it is unnecessary for us to discuss the question of his implied authority.
From the foregoing we conclude that the answers to the interrogatories are not in irreconcilable conflict with
Most of the questions discussed under appellant’s motion for a new trial have in effect been disposed of by our decision of the questions relating to the pleadings and the interrogatories. We shall only specifically refer to those which have not been so disposed of.
The complaint shows that the only interest the appellees, other than Lytel Bair, have in the property is given them by the mortgage, and they ask only that such interest be protected out of the amount that may be found due on the policy. The protection of such interests could not change the liability of appellant nor increase the total amount, if any, due on the policy.
On the part of appellees the case was tried on the theory of a total loss, and that the value of the property destroyed by the fire exceeded the amount of the policy. On behalf of appellant the case was defended on the ground that it was not liable for any part of the loss for numerous reasons, principally because of the execution of the mortgage on the property without procuring its consent in writing on the policy; failure to make due proof of loss, and on the theory that appellee Lytel Bair had himself caused the property to be burned. We have read the evidence and find it conflicting on some of the controverted propositions, but there is no failure of proof to sustain every material element of appellees’ case.
We have considered and decided the controlling questions presented, and do not feel warranted in extending this already too lengthy opinion to further discuss minor technical questions, the rulings upon which, in our view of the paramount questions already decided, could not have deprived appellant of any substantial right, nor been influential in the determination of the legal controversy or the questions of fact submitted to and decided by the jury. Judgment affirmed.
Rehearing
On Petition fob Reheabing.
Several propositions are urged by appellant in support of its petition for a rehearing. In our view of the case all of these propositions are disposed of by the original opinion, either expressly or by necessary implication from the language employed and the authorities cited.
Appellant earnestly insists that the court has either failed to comprehend its position, or has by oversight applied principles that have no application to the controlling questions of this case. This contention is especially urged as to the court’s view of the authority of appellant’s local agent and the waiver by him of the provision requiring any waiver affecting the policy to be indorsed thereon in writing in order to bind the company. It is insisted that the mortgaging of the property after the policy was issued rendered it void and relieved appellant from all liability thereon; that no conduct or promise of the local agent respecting the indorsement of the consent of the company in writing on the policy could waive such requirement and have the effect of making appellant liable for the loss occasioned thereafter by the destruction of the property by fire.
It is contended that in the cases cited by the court the insured had a right which was affected by the conduct of the company or its authorized agent, and that in this case the insured had no right to mortgage the property without the consent of the company, and that by doing so without procuring such consent duly indorsed on the policy the same was rendered void; that there
This view of the questions involved overlooks several important propositions clearly set forth in the opinion, viz.: (1) The local agent had express written authority to act for the company in giving consent to the mortgaging of property insured through his agency, and to make the necessary indorsement on the policies to evidence such consent and transfer of interest to the mortgagees. (2) The local agent gave such consent and promised to make the requisite indorsement on the policy to comply with the provisions thereof. (3) At the time such consent was given in January, the policy was in the possession and under the control of the local agent and so remained until after the fire occurred in August following.
As supporting the views we have announced we refer to the case of Havens v. Home Ins. Co. (1887), 111 Ind.
i The petition for a rehearing is overruled.
Note. — Reported in 114 N. E. 763, 116 N. E. 752. Insurance: waiver of stipulation in policy that conditions can be waived, only by writing issuing from the insurer; 107 Am. St. 99, 100, 19 Cyc 777, 778.