75 Ind. 535 | Ind. | 1881
The appellant insured William A. Duke against loss by fire. After a loss had occurred, the policy was assigned, by endorsement, to the appellee, who brought this suit against the appellant upon the policy. A demurrer to the complaint, for want of facts sufficient to constitute a cause of action, was overruled and the appellant excepted. An answer was filed in ten paragraphs, of which the first was the general denial. The appellee demurred to each of the other nine paragraphs, for want of facts sufficient to constitute a defence. The demurrers were sustained as to the sixth, ninth and tenth paragraphs, and overruled as to the
1st. The court erred in overruling the demurrer to the complaint.
The second assignment is expressly waived by the appellant.
3d. The court erred in overruling the demurrer to the second reply to the third and fourth paragraphs of the answer.
4th. The court erred in overruling the motion for a new trial.
The objection made to the complaint is, that it “contains-no allegation of insurable interest in the appellee or his assignor.” The complaint states that the appellant “did insure him, the said William A. Duke, to the extent of $350 on his one-story frame house,” and the policy of insurance, which is a part of the complaint, contains the following: “Do insure William A. Duke-on his property specified as follows: $300 on his one-story frame storehouse -, $50 on his shelving, counters, desks and scales contained in said storehouse.” The foregoing averments sufficiently show an insurable interest in the assured at the time of the delivery of the policy. The Rising Sun Insurance Co. v. Slaughter, 20 Ind. 520. But the complaint should allege that the assured had an insurable interest at the time of the loss also. The Aurora Fire Insurance Co. v. John
The appellee claims that, if the averment of interest was defective, it was cured by the verdict; but, as to interest at the time of the loss, here was not merely a defective averment ; there was no averment. Sometimes the want of a necessary averment in the complaint is cured by a verdict. Howorth v. Scarce, 29 Ind. 278; Purdue v. Stevenson, 54 Ind. 161. And there are many cases In which a defective averment in the complaint is cured by a verdict. Westfall v. Stark, 24 Ind. 377; Alford v. Baker, 53 Ind. 279 ; Shimer v. Bronnenburg, 18 Ind. 363. But in none-of the cases above cited was there any objection to the complaint by way of demurrer. Complaints have been held good after verdict, to which a demurrer would have been fatal. Gander v. The State, ex rel., 50 Ind. 539; Donellan v. Hardy, 57 Ind. 393; Shaw v. The Merchants National Bank, 60 Ind. 83 ; Galvin v. Woollen, 66 Ind. 464 ; Parker v. Clayton, 72 Ind. 307. The objection in the case at bar having been taken by demurrer, the verdict will not cure the defect. Where there is not merely an imperfect statement, but no statement at all, the defect is not cured by a verdict, whether a demurrer were interposed or not, unless the omitted matter be implied in, or fairly inferable from, the facts alleged and proved. The rule is thus stated in Gould Pl., Ch. 10, sec. 22: “If the declaration omits to allege any substantive fact, which is essential to a right of action, and which, is not implied in, or inferable from, the finding of those which are alleged ; a verdict for the plaintiff does
So, in the case at bar, the fact that William A. Duke, the assured, was interested in the property when the policy was delivered, furnishes no- legal inference that he was also interested therein at the time of the loss,
The court below erred in overruling the demurrer to the complaint, and the omission in the complaint was not cured .by the verdict. The complaint being insufficient, it becomes unnecessary to consider the errors assigned in the subsequent proceedings.
The judgment of the court below ought to be reversed, and the cause remanded, with instructions to permit the appellee to amend his complaint.
It is therefore ordered by the court, upon the foregoiug opinion, that the judgment of the court below be, and the same is hereby, in all things, reversed at the costs of the appellee, and the cause is remanded, with instructions to the court below to permit the appellee to amend his complaint.