13 Ind. App. 372 | Ind. Ct. App. | 1895
Lead Opinion
This action was brought by the appellees,
A demurrer for want of facts was overruled- to this complaint, and this ruling is one of the errors assigned.
The appellant contends that it appears from the policy
The last objection urged against the sufficiency of
, When no such condition is expressed in the contract, or cannot be necessarily implied from its terms, the authorities are all agreed that the provision for submitting the amount to aihitration is collateral and inde"pendent; that while a breach of such condition will support a separate action, it cannot be pleaded in bar to an action on the principal contract. Hamilton v. Home Ins. Co., 137 U. S. 370.
There is some conflict in the authorities as to when such conditions are precedent or merely optional, Kahnweiler v. Phenix Ins. Co., etc., 57 Fed. Rep. 562; Wright v. Susquehanna, etc., Fire Ins. Co., 20 Atl. Rep. 716; Nurney v. Fireman’s Fund Ins. Co., 63 Mich. 633; Phoenix Ins. Co. v. Badger, 53 Wis. 283; Wood Ins., section 1015. But the authorities are all agreed that whether such conditions be absolute and precedent, or merely optional, they may be waived. In the policy before us arbitration is not made absolute in
The next error discussed by counsel relates to the ruling of the court in sustaining appellees’ demurrer to appellant’s plea in abatement. This plea in substance avers that James E. Glenn, the assignee of Frank Zimmer, had instituted a suit on the same policy and had made the appellees in this action defendants thereto, and that the appellees had appeared thereto and filed an answer, in which they asked that their rights be protected under the policy, and that such action was pending in the Washington Circuit Court undetermined.
The complaint in this case shows that the company issued the policy to Koerner and Zimmer and to Frank Zimmer, knowing that the first owned the building and the latter the stock of goods; that their interests were separate and distinct. The policy was in effect two distinct contracts of insurance, or two distinct and independent stipulations in the same contract. In an action by Glenn on the policy, Koerner and Zimmer were only nominal parties; they could not obtain any affirmative relief therein unless they filed a counter-claim or cross-
The court below sustained a demurrer to the second paragraph of appellant’s answer. This ruling is one of the errors assigned. This paragraph avers that Glenn, the assignee of Prank Zimmer, brought a suit on the same policy in the Washington Circuit Court, against the company, making these appellees parties defendant thereto; that the appellees appeared thereto and filed an answer therein; that the issues joined were submitted and determined and judgment rendered therein, which is in full force. It does not appear that the appellees filed any counterclaim, or obtained or were denied any affirmative relief by the judgment rendered therein. If what we decided with reference to the plea in abatement is correct, there was no error in sustaining the demurrer to this paragraph.
It is also insisted that the court erred in its conclusion of daw on the special findings of fact and in overruling the motion for a new trial. A careful consideration of these assignments convinces us that there was no reversible error in these rulings of the court.
Judgment affirmed.®
Rehearing
On Petition foe Rehearing.
What is said in the case of Manchester Fire Assurance Co. v. Glenn, 13 Ind. App. 365, disposes of all the questions raised on the petition for a rehearing except three : the waiver of the arbitration, the sustaining of the demurrer to the plea in abatement, and the sustaining of the demurrer to the second paragraph of the answer.
We see no occasion for changing our opinion as to
As to the rulings in sustaining the demurrers to the plea-in abatement and the second paragraph of answer, it must be remembered that the contract sued upon by Glenn was a separate and distinct contract from the one in suit. It was a new contract in which Glenn alone was the insured, and in which the appellees had no interest and were not necessary parties. They were not hound to file a cross-action upon another and distinct contractnor could any judgment rendered therein in the absence of such pleading constitute an adjudication.
Petition overruled.