34 Ind. App. 387 | Ind. Ct. App. | 1905
Suit by appellee on a policy of fire insurance upon a stock of goods. The jury returned a general verdict for appellee, and, over appellant’s motions for judgment on answers to interrogatories and for a new trial, judgment was rendered in appellee’s favor.
Errors are assigned (1) upon the court’s refusal .to strike
The complaint avers appellee’s ownership of the stock of goods, issuing of the policy (a copy of which is an exhibit), appellee’s performance of all conditions, the loss, and appellant’s failure to pay. Appellant answered: (1) Denial. (2) That the insurance was void because the property, when the policy was issued, was mortgaged; the policy providing “This entire policy, unless otherwise provided by agreement indorsed hereon and added hereto, shall be void * * * if the subject of insurance be personal property and be or become encumbered by a chattel mortgage.” (3) A partial answer alleging other and concurrent insurance — the total insurance exceeding the value of the property — and appellant’s liability only for its proportionate share of the loss, as provided by a clause in the policy requiring the loss to be borne pro rata by all companies issuing policies. Appellee replied: (1) Denial. (2) That appellant, without requiring any written application, with full knowledge of the mortgage, accepted the premium, 'and delivered the policy to appellee, who was never notified of the provision for a forfeiture; that the provision was in very small print; that appellee accepted the policy believing it was valid and a security against loss, and without notice from appellant, until after the loss, that the policy contained such a condition. (3) That appellant’s agent wrote .the policy and accepted the premium with full knowledge of the mortgage; that appellee was never notified by appellant, or anyone in its behalf, that the policy -was void until after the loss. (4) That
Upon the question of the. waiver of the condition in the policy in regard to encumbrances on the goods insured, whether the supposed waiver be by appellant, or by the agent who issued the policy, the case is controlled by German-American Ins. Co. v. Yeagley (1904), 163 Ind. 651.
Taking all the evidence in the record, and the inferences that may properly be drawn from the facts proved, we think it can be said that there is evidence that appellant’s agent had notice of the existence of the mortgage when he issued the policy, and that there was a sufficient compliance with the provision in the policy relative to furnishing proofs of loss by appellee.
We find no error in the record. Judgment affirmed.