32 Ind. App. 448 | Ind. Ct. App. | 1904
Suit by appellee upon a policy insuring against loss by burglary. Trial by court, and finding and judgment for appellee. Errors are assigned on overruling a demurrer to each of the two paragraphs of complaint, sustaining a demurrer to the second and third paragraphs of answer, and the refusal of a new'trial.
Against the sufficiency of each paragraph of the complaint it is argued that it is not averred that appellee had performed all the conditions on her part to be performed, nor are facts pleaded sufficient to constitute an excuse for their nonperformance. The averment in each paragraph is “that afterward the plaintiff duly notified the said defendant of said loss, and the defendant sent an adjuster to adjust the same, but said adjuster refused to pay and indemnify the plaintiff for such loss, although she has frequently demanded the same.” The policy provides that the assured, upon the occurrence of a burglary, shall give immediate notice thereof to the company’s agent, or to the home office, and to the police authorities; that, in the event of a claim for loss under the policy, the claim shall be made forthwith in writing, setting forth a particular account of the manner in which the burglary was committed, the date, the damage done to the property insured, the assured’s interest in the property, other concurrent or similar insurance, and that the company, upon application therefor, will provide the assured with a blank for such statement of loss;' that the company shall not be held to have waived any provision or condition of the policy, or any forfeiture thereof, by furnishing such blank, or by any act taken in connection with the investigation of any claim; that no suit shall be brought under the policy until three months after the particulars of the loss, as before required, have been furnished, nor at all unless commenced within twelve months after date of the burglary. The provisions above set out are conditions precedent to appellee’s fight to recover on the policy. It is essential to the sufficiency of the com
Section 4923 Burns 1901, relating to foreign insurance companies doing business in this State, and in force when the policy in suit was issued, prohibits such company from inserting certain conditions in its policy; among others, that the insured shall give notice of the loss forthwith, or within the period of time less than five days. The statute provides that any condition inserted in a policy contrary to its provisions shall be void. Under this statute the provisions in the policy in suit that the insured shall give immediate notice of the burglary, and shall forthwith furnish proof of loss, are invalid; but, having been inserted in the policy, the most that can be required by the insurer of the insured is that the insured shall use reasonable diligence in giving the notice and furnishing proof of loss. Phenix Ins. Co. v. Rogers, supra; Germania Fire Ins. Co. v. Columbia, etc., Tile Co., 11 Ind. App. 385; Insurance Co. v. Brim, 111 Ind. 281; Pickel v. Phenix Ins. Co., 119 Ind. 291.
Appellee then was required to give the notice and furnish proofs of ..loss within a reasonable time after the burglary, and the complaint should show that this was done or an excuse for not so doing. Ordinarily, what is a reasonable time is a question of fact, but in determining the sufficiency of the facts pleaded as against the demurrer it may be a question of law. The complaint, after stating the facts of the burglary, which it is averred was on May 24, 1901, states “that afterwards” appellee duly notified appellant of the loss. Keeping in view the general rule that a pleading must be construed most strongly against
The complaint does not contain the general averment that appellee has performed all the conditions on her part to be performed, nor does it contain anything equivalent to this. The policy not only requires that notice of the burglary shall be given, but that, in the event of a claim, proof of loss shall be made. The only averment in this particular is “that afterwards the plaintiff duly notified the said defendant of said loss.” Even if this could be said to include both the notice of the burglary and the proof of loss required by the policy, it is no more than the conclusion of the pleader that the notice given, and the proof of loss made, if any, were such as the policy required. The policy provides that in the event of a claim for loss the same shall be made in writing, duly subscribed by the assured, and shall set forth a particular account of the manner in which the
Does the complaint show a waiver of the performance of these conditions? The only averment that can be said to show a waiver is that appellee notified the company of the loss “and the defendant sent an adjuster to adjust the same, but said defendant refused to pay and indemnify the plaintiff for such loss.” There is a waiver of proof of loss where the company denies the validity of the contract, or asserts that the policy has been canceled (Commercial Union Assur. Co. v. State, ex rel., 113 Ind. 331) ; or where it repudiates the contract and denies all liability (Bowlus v. Phenix Ins. Co., 133 Ind. 106, 20 L. R. A. 400) ; or where the company’s agent told the insured that the company was not liable, and would never pay any part of the policy (National Fire Ins. Co. v. Strebe, 16 Ind. App. 110) ; or where there is a refusal to pay because the house was not occupied when burned (Home Ins. Co. v. Boyd, 19 Ind. App. 173); or where the company refuses to pay because the insured property was mortgaged (Western Assur. Co. v. McCarty, 18 Ind. App. 449). But it certainly could not be held that a refusal to pay because the notice and proof of loss had not been given as the policy requires would be a waiver of the performance of these conditions. And, so far as the pleading discloses, this may have been the reason for refusing payment. Eo reason whatever is given for the com
Moreover, the pleading’ should show the waiver to have become effective before the policy was forfeited through failure to perform the conditions. These conditions could* be waived only within the time when appellee would have performed them, — that is, a reasonable time. So that, if the company’s refusal to pay, as pleaded, could be held to constitute a waiver, it does not appear that this refusal to pay was not after the contract, by its terms, was forfeited because of appellee’s failure to perform the conditions. Railway, etc., Assn. v. Armstrong, 22 Ind. App. 406; Phenix Ins. Co. v. Pickel, 3 Ind. App. 332; American Fire Ins. Co. v. Sisk, 9 Ind. App. 305; Standard Life, etc., Ins. Co. v. Strong, 13 Ind. App. 315.
Counsel for appellee cite the case of Indiana Ins. Co. v. Pringle, 21 Ind. App. 559. In that case the complaint, which -was not tested by demurrer, averred that the insured had, on his part, fully performed every act which, by the terms of the policy, he was required to do, and that after the fire the company’s adjuster and the insured agreed in writing upon the amount of the loss as covered by the policy, which writing was signed by the insured and the adjuster, on behalf of the company, and filed with the complaint as an exhibit. The only question discussed in that case was the refusal of a new trial. The court correctly held that it was unnecessary to decide whether the averments in the complaint set out a waiver, as upon the trial, without objection by the company, facts were testified to constituting a waiver of proof of loss.
It is further argued that the second paragraph does not aver such a loss as that insured against. In the policy appellant agrees to indemnify appellee for loss of money, etc., “in consequence of the felonious abstraction of the same by
Judgment reversed.