62 Ind. App. 528 | Ind. Ct. App. | 1916
This is an appeal from a judgment in appellees’ favor for $4,891.50, in an action brought by. it to recover on four insurance policies issued by appellant. These policies, except as to dates and amounts, are identical in their terms. The complaint is in four paragraphs, each of which is based on one of said policies, and such paragraphs are in other respects substantially identical in their averments.
The same defense is interposed to each of these paragraphs of complaint, and consists of an answer in general denial and an affirmative paragraph predicated on a stipulation in the policy which provides that (we quote that part only which has controlling influence on the questions presented by the appeal) the “entire policy unless otherwise provided by agreement hereon or added hereto shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises * * * gasoline.” The part of such answer affecting the question presented by this appeal charges that appellee without appellant’s knowledge, consent or permission, kept, used and allowed gasoline • on the insured’s premises, and thereby voided the policy on which its cause of action is based.
To said affirmative answer appellee filed a reply in general denial and a special reply, which, as affecting the question involved, alleged in substance that at the time the policy sued on was
To the end that the questions presented and the respective contentions of the parties hereto may be better understood, we preface a statement of such questions and contentions with a statement of the undisputed facts shown by the evidence and the admission of the parties: On and before December
As before indicated, for the purposes of the questions presented by this appeal, appellant’s sole defense rests on its claim that appellee voided the policy sued on by keeping and using gasoline on the insured premises. Appellee concedes that gasoline was us id and stored in a tank on said premises, but insists in effect that the placing of the rider on the policies orginally issued was in effect the making of a new contract of insurance as of that date, and that at that time and before appellant actually and constructively knew that gasoline was being used on said premises, and hence has waived its right to avoid or defend an action on such policies on the ground of a breach of Said condition.
It seems to be appellant’s contention that the question of the waiver of the provision of the policy prohibiting the use of gasoline ■ on said premises should be determined from conditions as they existed when the insurance was originally issued, and from appellant’s knowledge at that time, and that the evidence shows without contradiction that gasoline was not then used on the premises. It is further contended by appellant
George M. Cobb testified in substance as follows: I am now, and, when the policies in suit were issued was, president of George M. Cobb & Company, a corporation engaged in the insurance business, and as such issued said policies and signed them “George M. Cobb and Company, General Agents.” My company has been appellant’s state or general agent at' Indianapolis for eleven years, and was also its local agent at said city, and was such general or state agent and local agent when the policies in suit were issued and the rider, headed “Indiana Reduction Company,” was .attached thereto. All of said riders were signed by “George M. Cobb & Company, Agents,” etc. The signature seems to be that of Mr. Holland, an employe of such com
Jesse T. Moorman testified in substance as follows: Have been president of appellee company since its organization. Our company took over the plant of the I. D. Co., and put in new buildings and machinery and changed the process of treating garbage from the old process of pressing to the degreasing process in which gasoline is used as a solvent, and began to operate under the new process June 14, 1912. Some time in the latter part of June, 1912, and after we changed to the degreasing process, I had two conversations with Mr. Cobb, one of which was over the phone, at a time when he called me up and wanted to place this line of insurance. The second conversation occurred at the Columbia Club, after we began the use of gasoline at the plant, where Mr. Cobb again solicited the line of insurance and suggested that it be placed through the Peoples Loan and Trust Co., of Winchester, Indiana, such trust company thereby getting part of the premium and Mr. Cobb part. I inquired the rate of insurance and he said he did not know just what it would be; that he would not know the rate until the Indianapolis Inspection Bureau fixed it, and when so fixed it would be written by all companies alike. I told him we had changed our process and “was putting in and having a new degreasing — was using gasoline for the extracting of grease in place of the hydraulic presses as had formerly been used by the old company.” I also told him that I thought we would let the Security Trust Company place the line of insurance. The conversation was about the insurance, but not about the in
Mr. McBride testified in substance as follows: I have charge of the insurance department of the Security Trust Company which, as a broker, placed this line of insurance. I acted for the broker and visited appellee’s plant several times and go.t information for preparing the riders and prepared
It is also insisted by appellee that appellant has waived its right to insist upon the defense made by it because of its failure to tender back the premium or any part thereof paid' by appellee, but in view of our conclusion, supra, we need not further extend this opinion by consideration or determination of such question. As affecting the question, however, we cite the following cases recently decided by the Supreme Court and this court: Ohio Farmers' Ins. Co. v. Williams (1916), Ind. App.—, 112 N. E. 656; Aetna Life Ins. Co. v. Bockting (1906), 39 Ind. App. 586, 79 N. E. 524; Western Ins. Co. v. Ashby (1913), 53 Ind. App. 518, 523, 102 N. E. 45, and cases cited; Metropolitan Life Ins. Co. v. Johnson (1911), 49 Ind. App. 233, 241, 94 N. E. 785; United States, etc., Co. v. Clark (1907), 41 Ind. App. 345, 351, 83 N. E. 760, and cases cited; Glens Falls Ins. Co. v. Michael, supra.
No reversible error is presented by the record. Judgment affirmed.
Note. — Reported in 113 N. E. 425. Insurance, waiver of stipulation in policy, constructive notice to company, 107 Am. St. 108; 19 Cyc 807, 809, 817.