35 Ind. App. 361 | Ind. Ct. App. | 1905
Appellee brought this action against appellant to recover, on an insurance policy issued by appellant to him, for a loss by fire. The complaint is in one paragraph. Appellant filed an answer in nine paragraphs, the first of jvhich was a general denial. A demurrer1 was addressed to each, the second, third, fourth, fifth, sixth, seventh, eighth and ninth paragraphs of answer, and was sustained to each of them except the seventh and eighth. The case was submitted to a jury for trial, and before the conclusion thereof appellant made a motion for leave to file a tenth paragraph of answer, and supported that motion by affidavit. The court overruled the motion and refused to allow appellant to file such answer. The trial resulted in a verdict for appellee, and, over appellant’s motion for a new trial, judgment was pronounced accordingly. Appellee, before the trial of the cause, served notice upon appellant, and got an order of the court requiring appellant to produce, for inspection, certain papers in its possession, relating to the subject of the controversy. Appellant excepted to the order requiring it to furnish the papers for inspection, on the ground that the motion was not sufficiently certain and definite.
The various rulings above indicated, adverse to appellant, are assigned as errors. In disposing of the many
1. Appellant insists that it was error to sustain appellee’s motion requiring appellant to produce, for inspection, certain papers which were in its possession. The objection urged to the motion is that the papers asked to be produced are not sufficiently and definitely described. The notice served upon appellant was to produce proofs of loss furnished by appellee, all letters written by appellant’s agent, White, to appellant concerning appellee’s loss, all letters written to said White by appellee concerning his application or desire for insurance, and all letters written by appellee to said White concerning his loss. We think the description of the papers, letters, etc., was sufficiently definite, and that no error was committed in the order of the court requiring their production.
2. Appellant’s second paragraph of answer seeks to avoid the policy by'reason of alleged false and fraudulent representations, made in the application for insurance, as to the value of appellee’s dwelling-house. Appellant’s counsel insist that the representations as to valuations made in the application constitute warranties, and hence by the values fixed by appellee a fraud was perpetrated on appellant. The authorities in this State do not support appellant’s contention. On the contrary, it is uniformly held that answers to interrogatories in an application for fire insurance as regards the age and value of the buildings to be insured will be regarded as mere expressions of opinion. Cox v. Aetna Ins. Co. (1868), 29 Ind. 586; Phenix Ins. Co. v. Wilson (1882), 132 Ind. 449; Aurora Fire Ins. Co. v. Johnson (1874), 46 Ind. 315; Rogers v. Phenix Ins. Co. (1890), 121 Ind. 570; Phenix Ins. Co. v. Pickel (1889), 119 Ind. 155, 163, 12 Am. St. 393.
As to the fourth and fifth paragraphs of answer, as they rely upon false and fraudulent representations both in the application and proofs of loss, for the reasons already given, they were not sufficient as against a demurrer.
As to the seventh and eighth paragraphs of answer, to which the demurrer was overruled, no question is discussed, and therefore they need not he considered.
In the tenth paragraph of answer, which the trial court refused to permit appellant to file, it is averred that the policy sued on was issued upon the written application of the appellee, in which he made certain specific statements. It is then averred that in said application he was asked, and answered, the following question: “Is there any additional
The offered answer is not a model pleading, but it suffi
The answer sufficiently shows that at the time of the application for and issuing of the policy appellee had taken out a policy of insurance on part of Hie property covered in the policy in suit; that appellee did not divulge such fact to appellant; that appellant had no knowledge thereof until May 22, 1903, and had no opportunity to tender to appellee the return or unearned premium on said policy, but did tender to him such unearned premium May 19, 1903, amounting to $20.86, which he refused to accept. The answer thus shows an express violation of a valid provision of the policy. It has many times been held that such a violation of the provision of a fire insurance policy avoids its enforcement. Of the many cases so holding we cite the following: Havens v. Home Ins. Co. (1887), 111 Ind. 90, 60 Am. Rep. 689 ; American Ins. Co. v. Replogle (1888), 114 Ind. 1; Behler v. German Mut. Fire Ins. Co. (1879), 68 Ind. 347; Sisk v. Citizens Ins. Co. (1897), 16 Ind. App. 565. We conclude, therefore, that the tenth paragraph of answer stated facts sufficient to bar appellee’s cause of action, or, as was said in the last case cited: “The matter set up in the paragraph of answer was such as in terms avoided the contract of insurance.”
Appellee asserts that the offer to file the tenth paragraph was not timely made, because the affidavit in support thereof shows that the facts set up therein came to appellant’s knowledge, during the progress of the trial, on the 22d day of May, 1903, and the offer to file the answer was not made until the day following at the noon hour. There is some confusion in the dates as disclosed by the record, but it is conceded by appellant, that the offer to file the tenth paragraph of answer was not made, until the noon hour on May 23. The affidavit in support of the answer discloses that appellee failed to divulge the fact that, at the time the policy sued on was issued, he had another policy of $300 in. another insurance company upon part of the same property covered by appellant’s policy. He concealed this fact, not only in his application for insurance and in his proofs of loss, but also in his examination under the statute before the trial. Upon the trial of this cause he said he knew that he had the policy in the Hopewell Insurance Company, and that when he made application for the policy in suit, when it was issued to him, and when he submitted his proofs of loss, he did not say anything about it. He also testified that before the trial, when he was examined under the statute, he stated that he had no other policy on the property covered by the policy in suit except in the Indiana Insurance Company. The fact that appellee had this $300 policy never came to the knowledge of the appellant until about the noon hour on the day before the offer to file the additional paragraph was made. This fact was divulged through the testimony of the
We must not lose sight of the fact that the trial of this cause was in progress. During the sittings of the court, from the time appellant learned of the additional insurance to the very moment the answer was tendered, witnesses were being examined. The answer is of considerable length and necessarily required much time 1» prepare it. Additional time was required to prepare the affidavit in support of it. During the. progress of a trial multifarious duties devolve upon counsel, and in determining whether due diligence has been used, as applied to the facts disclosed in each particular case, we conceive it to be the duty of the court to take into consideration all the facts and the duties which devolve upon counsel. Appellant could not have filed its tenth paragraph of answer until it came into' possession of the facts relied upon. It certainly used every means at its command to acquaint itself of facts upon which to rest its defense. Appellee had ample opportunity to disclose the fact to appellant upon which the tenth paragraph of answer was based, yet he studiously kept that fact securely locked within his own breast. It is clear that no additional evidence would have been required upon the issue tendered by the answer, for the evidence was already in.
Insurance companies have the right to guard against the vice of over-insurance, and in protection of this right they are permitted to insert in their contracts of insurance stipulations similar to the one we have been considering. Such a stipulation being a valid one, both the insured and insurer are bound by it. It is the duty of the court to enforce the stipulations of a valid contract.
Speaking of the discretionary power of the court to permit amendments to pleadings, the Supreme Court, in Chicago, etc., R. Co. v. Jones (1885), 103 Ind. 386, 389, said:
Considering the entire record, we have reached the conclusion that “substantial injustice appears to have been done” by the refusal of the trial court to permit appellant to file its tenth paragraph of answer.
Other questions presented by the record upon the admission of certain evidence and the giving of certain instructions are not likely to arise again, and hence need not be considered.
The judgment is reversed, and the trial court is directed to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.