26 Ind. App. 88 | Ind. Ct. App. | 1901
Appellee sued on policies of fire insurance issued by appellants. The actions were separate, but as the questions involved were identical, after the issues were formed the two cases were by agreement of parties consolidated for trial. Separate judgments were rendered against each and each appellant has assigned error. But one transcript has been filed.
It was proper for the court to consolidate the two cases for trial, upon agreement of the parties, and the questions saved may be presented by one transcript. The fact that separate judgments were rendered and separate appeals taken and separate errors assigned does not require a separate certificate of the clerk to the transcript for each defendant below. Elliott’s App. Proc. §197; Roach v. Baker, 145 Ind. 330.
To each complaint were filed answers each in six paragraphs, the first of which was the general denial. A demurrer to the third, fourth, fifth, and sixth paragraphs
By the terms of the policies it is expressly provided that the companies were not liable beyond the actual cash value of the property at the time of the loss. The policies were not valued but were open policies. The companies were liable only for the actual value of the property lost. In such a policy an over-valuation of the property is immaterial. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Cox v. Aetna Ins. Co., 29 Ind. 586. If such a representation in such a policy is not material to the risk, does not increase the risk in any way, we fail to see any reason for saying that because the insured was at the time the company’s agent such representation by him was material.
The sixth paragraph of answer of appellant Phoenix Insurance Company alleges that after the fire the company sent its adjuster to adjust the loss; that he and appellee agreed upon the amount of the loss; that the appellee accepted an order or draft for the agreed amount “drawn by B. C. J. Pendleton, adjuster of Phoenix Insurance Co., of Brooklyn, N. Y., on Eugene Harbeck, general agent of said company at Chicago, 111., payable to the order of John Osborn, in full of all loss” under the policy sued on “and at the same time and in connection with said adjustment and settlement the plaintiff did in consideration of said settlement and draft or order execute a receipt whereby he acknowledged full satisfaction of all claims whatsoever arising out of the loss and claim sued on, and plaintiff at the same time surrendered the policy of insurance sued on to the defendant and that ever since said time and now retains said order or draft.”
It is a general rule that where a party has been induced by fraud to part with property, he may rescind the contract, but must first restore or offer to restore anything of value he may have received. But in the case at bar the company rescinded the contract. It refused to pay the draft and denied any liability and gave as its reason that appellee had burned his property. The company itself had in effect said the draft had no value. The company itself rescinded the contract and had done all that could be done to repudiate the contract of settlement before suit was brought. It is not claimed there was any fraud or mistake of fact in the settlement. Appellee was not required before bringing suit to return to the company something which the company itself said had no value. When the company repudiated the settlement, refused to pay the drafts and gave the reasons for its refusal, appellee was authorized to treat the drafts as worthless and to proceed in the matter as he could have proceeded had no attempted settlement been made. The demurrer to the reply was properly overruled.
No question is saved upon the instructions. A number of instructions purporting to have been given are copied into the transcript. Those given by the court of its own motion and those given at the request of appellants are not signed. It is not shown that any of the instructions were ever filed with the clerk. They have not been brought into the record either by order of court or by any bill of exceptions. Week v. Widgeon, 23 Ind. App. 405 and cases cited.
The court refused to submit the following interrogatory to the jury: (27) “If the defendants each did rescind the adjustments and settlements, in what manner did each rescind the same ? That is, what did each do in the way of rescinding the adjustment and settlement ?” An interrogatory may rightfully be submitted to the jury only upon some particular question of fact material to the cause. Chicago, etc., R. Co. v. Ostrander, 116 Ind. 259. The above interrogatory assumes that the jury might find there had been a rescission; but that would be a legal conclusion which a jury may not make. The effect of the interrogatory is a request for tire jury to say what was said and done
The jury answered in other interrogatories thát the companies did not pay the drafts; that they were protested for non-payment; that they refused to abide by the adjustment and pay the drafts because of matters communicated to them by an agent, and because they were informed and believed that appellee had burned the property. So that even if it should be conceded that the interrogatory was a proper one there was no reversible error in refusing to submit it to the jury. See Louisville, etc., R. Co. v. Hubbard, 116 Ind. 193; Louisville, etc., R. Co. v. Pedigo, 108 Ind. 481; Louisville, etc., R. Co. v. Cauley, 119 Ind. 142; Gates v. Scott, 123 Ind. 459; McCullough v. Martin, 12 Ind. App. 165.
The jury answered an interrogatory that after the drafts were protested and returned to appellee they had no value, and it is argued there is no evidence to sustain this answer. If we treat this answer as anything more than a mere conclusion, it is not inconsistent with the general verdict. There is evidence in the record to sustain the general verdict. Being consistent with the general verdict, an answer could not overthrow the verdict because not supported by the evidence. Board, etc., v. Nichols, 139 Ind. 611.
There is no error in the record for which the judgment should be reversed. Judgment affirmed.