21 Ind. App. 559 | Ind. Ct. App. | 1899
This action was brought in the Marion Circuit Court by appellee against appellant ón a policy of insurance against fire,- and tried in the Johnson Circuit Court upon change of venue. The complaint is in one paragraph; a copy of the policy was made a part thereof. It was issued lipón a stock .of goods, wares, merchandise, and store fixtures. It contained, in addition to the usual averments in such cases, the further allegation of a written agreement entered into between the company through its adjuster and the appellee of the amount of the loss. A copy of this agreement was made a part of the complaint. No demurrer was filed to-the complaint, and its sufficiency is not questioned here. The defendant answered in four paragraphs; the first is the general denial. In the second it is averred that the property insured was encumbered by a chattel mortgage, and that the same remainéd in force and effect during the
The fourth paragraph sets up the same facts, and charges appellee with fraudulently procuring said policy by withholding from the defendant all knowledge of the fact that the property therein insured was mortgaged; that after said property was destroyed by fire, appellee fraudulently reported the value of the property to be greater than its actual value; that by reason of the various facts set out in the several paragraphs of answer said policy was void and of no effect.
Appellee replied first by general denial; second,
The only error which is discussed by appellant’s learned counsel in this appeal is the action of the court in overruling appellant’s motion for a new trial. Ten reasons are set out in the motion for a new trial. The first four will be considered together. They are that the verdict of the jury is contrary to law; contrary to the evidence; contrary to the law and the evidence; is not sustained by sufficient evidence. The first reason urged upon this court is that the evidence failed to show that the conditions of the policy had been complied with as averred in the complaint. The complaint avers that immediately after said loss to plaintiff by said fire, he gave notice to said defendant of such loss; that he has on his part fully performed every act which by the terms of the policy he was required to do; that on the 24th day of March, 1897, one J. W. Williams, who was the legally acting and authorized adjuster for said defendant in cases of loss by fire, and this plaintiff fully agreed upon the amount of plaintiff’s loss by said fire, as covered by said policy, which was in the aggregate sum of $1,712.08, Avhich said amount of loss so agreed upon was reduced to writing and signed by this plaintiff and said Williams for and on behalf of said defendant as such adjuster; a copy of which agreement was filed with the complaint as an exhibit. Said exhibit is headed or entitled “Statement of John W. Pringle loss and damage to stock, furniture and fixtures as agreed to this 24th day of March, 1897,” then follow items of loss
The following is one of the provisions of the policy: “As soon after the fire as possible a particular statement of the loss shall be rendered to this company, signed and sworn to by the assured, stating such knowledge or information as the assured has been able to obtain as to the origin and circumstances of the fire, and also stating the title and interest of the assured and of all others in the property, the cash value thereof, the amount of loss or damage, all other insurance covering any of said property and a copy of the written portions of all policies and the occupancy of the certain premises.” Appellant contends that this was one of the conditions of the policy which must be complied with before the bringing of suit, and which the appellee avers in his complaint he did comply with because of the general averment; that the averment that he had performed all the conditions on his part to be performed included making proofs of loss as provided in the foregoing clause of the policy; and that he cannot avail himself of a waiver on the part of appellant of any of the terms and conditions in the policy in the absence of an averment of waiver. Under our statute, section 373, Burns’ R. S. 1894 (370, Horner’s R. S. 1897), and a number of decisions, it. is sufficient in an action of this character to aver in general terms the performance upon the part of the insured of all the terms of the policy. The complaint should affirmatively show a performance of the conditions upon which the claim is based, or that a performance has been waived. The proof of loss was a condition precedent; it was included in the general averment; its proof was necessary to a recovery under the general averment. Indiana Ins. Co. v. Cape-
Tlie complaint in this case states the facts attending the issuing of the policy, the destruction of the property by fire, the agreement as to the value of the property destroyed. It avers that “on the 24th day of March, 1897, one J. W. Williams, who was the legally acting and authorized adjuster of said defendant in cases of loss by fire, and this plaintiff fully agreed upon the amount of plaintiff’s loss by said fire as covered by said policy,” etc. Appellant was informed by this averment tha,t appellee relied upon an agreement as to the amount of his loss.
We do not deem it necessary to decide whether the allegations in the complaint before us set out a waiver. Upon trial of the cause, without objection upon the part of appellant, facts were testified to constituting a, waiver of the condition of proof of loss. The evidence shows that the fire occurred between ten and eleven o’clock the night of February 6, 1897. Appellee telegraphed King, the agent of the company, who had written the policy, on the morning of the 7th of February. King came to the scene of the fire that evening and had a talk with appellees with reference to the fire. Four days afterwards, Williams, the adjuster, called on appellee, on which occasion he requested appellee to get the bills of his goods purchased. He subsequently called on him also for the books and accounts; they were delivered to and examined by him. The adjuster made two or more visits to the insured with a view of investigating the case. The company examined appellee under oath as to the fire and loss.
Appellant claims, however, that the signed statement is only a statement of the amount of loss; that prior to its execution, appellee and appellant entered into a
Without reference to the sufficiency or insufficiency of the complaint to authorize proof of waiver of loss, evidence without objection was admitted sufficient to warrant a finding of such waiver. We have said this much upon the question of waiver upon the presumption that the question is likely to arise upon a second trial.
Appellant’s learned counsel object to instruction number one, given by the court. It purported to state the material averments of the complaint. This instruction is as follows: “This is a suit upon a fire insurance policy to secure the amount due on the policy after loss by fire. The plaintiff alleges in substance in his complaint that the defendant, the Indiana Insurance Company of Indianapolis, Indiana, is a corporation organized under the laws of the state of Indiana, and that on the 31st day of July, 1896, said defendant by her legally appointed agent, in consideration of $30 then paid to said defendant, the defendant issued to plaintiff a policy of insurance upon his general stock of merchandise, being such articles of merchandise as are usually kept for sale in a general country store, to the amount of $1,900 against loss by fire, $100 on store furniture and fixtures in the town of Mahalasviile, Morgan county, Indiana, for a term of one year; that plaintiff was in the possession of and the owner of the property insured by said policy, and said plaintiff accepted said policy and the same was issued to plaintiff to secure him against loss by fire on said property for one year. That on the 6th day of February, 1897, the said property was totally destroyed by fire, without any fault or negligence of this plaintiff, and to the damage of this plaintiff in the sum of $2,000; that plaintiff gave notice to said de
In Louisville, etc., R. Co. v. Grantham, 104 Ind. 353, the court, in passing upon an objection to an instruction given by the lower court, said: “So far as this instruction goes, it states the law correctly as applicable to the first paragraph of the complaint, to which it was expressly limited. If it was objectionable at all, it was on the ground of what it omitted to state, and if it had been the only instruction of the court in relation to the case stated in the first paragraph of the complaint, it would have been justly open to the criticism of appellant’s counsel.”
Appellants also object to instruction number thirteen and a half given by the court. It reads as follows: “The rule applicable is that a failure or neglect on the part of the plaintiff to make known facts which the defendant may regard as material io the risk is not a breach of a condition in the policy avoiding it in case of any omission to make known every fact material thereto, because the plaintiff has a right to suppose that the defendant, by its agent, will make proper inquiries concerning all facts except such as are supposed to be known or are regarded as immaterial.” The policy provides that it is issued subject to the following terms and conditions: “(1) The assured hereby covenants and agrees that no fact material to the risk or relating to its condition, situation or occupancy has been concealed, and that the interest of the assured therein has been truly stated to this company. (2) To notify the company immediately if the above mentioned premises shall become vacant or unoccupied, or if any change in the nature, character, or occupation, or of any increase of hazard
Under the foregoing provisions of the policy, it was incumbent upon the insured to notify the insurer of the existence of an encumbrance. In the absence of any provision requiring the defendant to disclose the condition of the property, as to the existence of the chattel mortgage, the insured would not have been required to make any disclosure with reference thereto. Burrett v. Sac., etc., Ins. Co., 5 Hill, 188; Continental Ins. Co. v. Munns, 120 Ind. 30; Clark v. Manufacturers’ Ins. Co., 8 How. (U. S.) 235. The instruction therefore did not correctly state the law applicable to the policy in question.
The court refused to give the following instruction requested by appellant: “This is an action upon a policy of fire insurance executed by the defendant, insuring the plaintiff against damage or loss by fire in the sum of $2,000 upon his general stock of merchandise, furniture and fixtures contained in a certain building at Mahalasville, Morgan county, Indiana. You are instructed that the plaintiff in accepting this policy of insurance is bound under the law to know the terms and conditions of such contract, and is bound thereby. One of the conditions of said policy is that the assured covenants and agrees to notify the