65 Ind. App. 330 | Ind. Ct. App. | 1917
Appellee commenced a separate action against each of appellants to recover on certain fire insurance policies issued by them and held by it, covering the same property and destroyed by the same fire. These actions were each put at issue on the part of appellants by filing their respective answers in general denial, and also affirmative paragraphs, predicated on certain stipulations in the policies in suit. The only one pertinent to the questions presented by this appeal being as follows:
“This entire policy, unless otherwise provided by agreement endorsed thereon 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.”
Appellants’ sole defense is based on a claim that, notwithstanding such facts, appellee is not entitled to recover for the reason that it voided the policies in suit by keeping and using gasoline on the insured premises, contrary to the provisions of the policies. As affecting this contention the undisputed evidence shows that at the time of the issuance of the policies, and continuously thereafter to the time of the fire, large quantities of gasoline were stored on the premises covered by the policies, and used by appellee in the conduct of its business thereon; that the insurance broker, through whom appellants secured the risks, while acting within
We may add that this appears to be a kindred case with the cases of Globe, etc., Ins. Co. v. Indiana Reduction Co., supra, and Caledonian Ins. Co. v. Indiana Reduction Co. (1917), 64 Ind. App. 566, 115 N. E. 596, which are decisive of some of the questions presented on this appeal. We find no reversible error in the record. Judgment affirmed.
Note. — Reported in 117 N. E. 273. Insurance: necessity of the return or tender of unearned premium to effect cancellation of fire insurance by insurer, 12 Ann. Cas. 1067, Ann. Cas. 1913D 490, 1917B 910; liability of insurance broker for failure to inform the company that gasoline was kept on premises, 38 L. R. A. (N. S.) 614, 632. See under (1) 19 Cyc 936; (2) 19 Cyc 712; (3, 4) 19 Cyc 817, 819; (4) 19 Cyc 819; (6) 19 Cyc 807.