163 Ind. 321 | Ind. | 1904
Lead Opinion
Appellees -sued appellant in two paragraphs. By the first, they seek to recover on a fire insurance policy the value of the property destroyed, and by the second, they seek recovery upon an account stated. Upon the issues joined there was a trial by jury, and with a general verdict in favor of appellees the jury returned answers to a large number of interrogatories. The overruling of appellant’s motion for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and the sustaining of appellees’ motion for judgment on the general verdict, are the only questions presented for decision.
The material facts, as shown by the answers to interrogatories, are as follows: Appellant is a mutual insurance company. Its board of directors consisted of one member from each township of the county. It was the duty of each
Appellant grounds its defense on appellees use of natural gas from a high-pressure line without a regulator, in. violation of the company’s by-laws. Appellees seek to avoid the answers by replying that the company solicited, accepted, and continued appellees’ risk, and demanded, collected, and retained from them all premiums and assessments, with full knowledge that they were supplying their grate from a high-pressure line without a regulator other than double key valves.
Among its other findings, the jury answered, in response to an interrogatory, that it's verdict was based on the second paragraph of complaint. Appellant’s first contention is that this w'as equivalent to a finding for the defendant on the first paragraph, and as the other findings, show there was no account stated between the parties, as alleged in the second paragraph, there is, therefore, no basis for the general verdict to rest upon, and it must fall. The interrogatory in question should not have been submitted to the jury. The answer called for was not such a fact on the issues of the cause as is contemplated by §555 Burns 1901,
We must not lose.sight of the fact that in testing all questions of conflict between, the general verdict and special findings of the jury we must assume that every fact provable under the issues, which is essential to the support of the general verdict, was by the jury found established. This rule has been affirmed so often that we deem it unprofitable to cite cases.
It is insisted that the use of gas by appellees in their grate without a good regulator, in violation of section thirteen of the company’s by-laws, forfeited their right of recovery. While it is true that the answers to interrogatories show that the by-laws provided that members — or insured persons — were “required to have good regulators at their houses,” and that in default of which the association would not be liable for any loss by fire, it is also shown by such answers that a director of appellant, whose duty it was to solicit, supervise, and accept all insurance in his township, and to collect the initiation fee, and all fines and assessments that should be levied against the policy, and to keep a record of all the company’s business in his township, and who did solicit appellees’ insurance, and did prepare, approve, and accept appellee’s application, and forward the same to the secretary of the company for an issuance of the policy, was at the time of taking such application fully informed by appellees that they were using gas without a regulator. It also appears that this information was, by the director, prior to December 23, 1896 — which we must presume was at the time of forwarding the application — reported to the company. It is still further shown
“It is abundantly settled,” said Mitchell, J., in Havens v. Home Ins. Co. (1887), 111 Ind. 90, 60 Am. Rep. 689, “that, nothwithstanding conditions in the policy, if at the time the insurance was effected, or afterwards, there were conditions, uses or incidents of the risk, which were in conflict with conditions in the policy, and which were known to the insurer, or its agent, whose knowledge is imputable to the company, such conditions, uses or incidents, can pot be used to defeat a recovery after a loss has occurred. Jssuipg .op continuing a policy of insurance, with full knowledge by the company of existing facts, which, according to a condition of the contract, ¡make it voidable, is a waiver of the condition.” See authorities collected on page •92 of that case. See, also, German Mut. Ins. Co. v. Niewedde (1895), 11 Ind. App. 624; Northwestern, etc., Assn, v. Bodurtha (1899), 23 Ind. App. 121, 77 Am. St. 414.
It follows that the special finding of the jury that appellees were using gas without a regulator was not in ponfliot
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Counsel for appellant complain that we misstated-the record, and avoided the decision of a question relied upon for a reversal. Eor the sake of clearness We will restate that the case was tried upon a complaint consisting of two paragraphs: The first, on a policy of insurance, the second, on an account stated. To an interrogatory propounded to them the jury answered that they found for the plaintiffs on the second paragraph of the complaint. The jury, also, in their - general verdict stated that their finding for the plaintiffs was on the second paragraph of the complaint.
The only errors relied upon for reversal, as stated in appellant’s brief, are (1) the overruling of appellant’s motion for judgment in its favor on the interrogatories and answers thereto, notwithstanding the general verdict, and (2) the sustaining of appellees’ motion for judgment on the general verdict.
The fact- that the general verdict specified the particular paragraph of the complaint upon which it rested escaped our attention, and we disposed of the point as if the fact w'as only disclosed by an answer to an interrogatory. We regret the inadvertence, and gladly embrace the opportunity afforded by the petition for a rehearing to amend it.
Appellant’s contention is (1) that the cause of action does not admit of an account stated, and (2) that the answers to interrogatories show that there was no account stated between the parties. Conceding the claim that a finding for the plaintiffs on a particular paragraph was equivalent to a finding for the defendant on the other paragraph, this fact will not invalidate the judgment before us?
“It is advisable,” says Mr. Chitty, “in all declarations in assumpsit for the recovery of a money demand (excepting against an infant, who can not in law state an account), to insert a count on an account stated. The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount, and it is not necessary to set forth the subject-matter of the original debt -x- * -x- or -(¡hat there should have been cross-dealings or accounts between the parties. The present rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, that will be evidence to support a count upon an account stated.” 1 Chitty, Pleading (4th Am. ed.), *358, *359.
The case, as to the questions now involved, stands thus:In their complaint the plaintiffs added a second paragraph on an account stated, in which they sue the defendant for a specific sum which they allege was the result of an accounting between them, and which the defendant agreed to pay. The jury found by their general vqrdict that unde;*
Appellant argues that the absence of any accounting is shown by the following interrogatories . and answers: “(22) Did Perry Heritage, as director, and John L. Thomas, as secretary, of the defendant company, Visit the home of the plaintiffs on the 11th day of December, 1896, and there take down plaintiffs’ statement as to what they claimed was destroyed by fire? Ans. Tes. (23) After Heritage and Thomas, at the time named, had taken down the list of property which plaintiffs claimed had been destroyed, and its value, did Jesse Eeavis then ask, ‘When will I get my money,’ and Thomas answer that they would take thirty days in which to investigate, and to ascertain whether there was any crookedness, or anything wrong, and if they found everything all right he Would get his money in thirty days ? And was that all that was said concerning the question? Ans. Tes, except plaintiff said ‘I need my money.’ ” Assuming that both branches of interrogatory twenty-three (which should not have been submitted to the jury for being double) were answered in the affirmative, such answers by no means go to the extent of finding that there was no settlement and agreement between the parties, prior to the suit, in respect to the amount due the plaintiffs
Upon further consideration we find no error in the rec ord, and the petition for a rehearing is overruled.