144 N.E. 154 | Ind. Ct. App. | 1924
This is an action by appellee against appellant and its agent, George H. Moore and Company, on an insurance contract. The complaint is in a single paragraph and alleges, in substance, among other things, that on January 1, 1921, appellant issued to the *223 Mercantile Discount Corporation, a general or open policy of insurance, No. A 125615, by which it was insured for one year, against loss or damage from fire and lightning to automobiles, in which it had an interest by reason of an indebtedness; that by the terms of said policy, appellant agreed to issue to the owners or purchasers of automobiles in which said corporation had such interest certificates which would entitle them to share in the amount for which appellant would be liable under said policy, in the event of loss to the automobiles covered by the certificates issued to them; that appellee was indebted to said discount corporation in a sum which gave him the right to insure under the terms of said general policy; that in compliance with the same, appellant, for a valuable consideration, issued to appellee a certificate of insurance upon one Pan American touring car, owned by him, insuring the same against loss by fire in the sum of $2,000; that on July 15, 1921, while appellee was still the owner of said automobile, and said insurance was in full force and effect, the automobile so insured was wholly destroyed by fire; that immediately thereafter appellee gave notice of such loss, and of the time, place and circumstances thereof, to appellant and its authorized agent. Other facts are alleged which relate to the details of such notice, and to appellee's failure to make proof of loss within the time specified in the policy. Copies of the policy and certificate mentioned in the complaint were marked exhibits A and B respectively, and made parts thereof. Said policy contains, among others, the following provisions:
"It is a condition of this agreement that the assured will declare for insurance under this policy every car sold by them on which there is either a mortgage interest or any indebtedness of any amount whatever due them so far as it shall be in their power to control this insurance. Any declaration so made shall be considered *224 as a binder under this contract, pending the issue of a certificate to evidence the transaction. All certificates are to insure for the joint benefit of the assured and the purchasers of the car, as their interest may appear, and in the event of loss are made payable: FIRST to the assured, as interest may appear, and balance, if any, to the purchaser.
"In the event of loss or damage the insured shall forthwith give notice thereof in writing to this company or the authorized agent who issued this policy, and shall protect the property from further loss or damage; and within sixty days thereafter, unless such time is extended in writing by this Company, shall render a statement to this Company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and cause of the loss or damage, the interest of the insured and all others in the property. * * * It is a condition of this policy that failure on the part of the insured to render such sworn statement of loss to the Company within sixty days of the date of loss (unless such time is extended in writing by the Company) shall render such claim null and void."
Said certificate, omitting signature, is as follows: "This certifies that Max Gellman * * * has insurance under Open Policy No. A125615 to the amount of $2,000. (Here follows length of time and description of automobile), subject to all the stipulations and conditions of the Open Policy referred to above. This Company has issued an automobile policy insuring * * * for the benefit of the holders and endorsers of automobile purchase notes, and of approved purchasers of automobiles, as described above, sold on deferred payment plans, against loss or damage by fire * * *. This certificate is issued in duplicate to said Mercantile Discount Corporation, the original as collateral to the Open Policy, and the duplicate to the purchaser named *225 above, as evidence that the purchaser is buying an automobile on time or conditional sale contract, * * * it being understood and agreed that said policy protects the interest of such purchaser to the extent of the difference between the sum insured as stated above, and the amount of the interest in the automobile (at the time of occurrence of any loss or damage covered by this policy) of Mercantile Discount Corporation or its assigns, as holders of unpaid purchase notes, or the interest of any endorser in due course of said notes."
Appellant filed a demurrer to the complaint on the following grounds: (1) It does not state facts sufficient to constitute a cause of action; (2) there is a defect of parties plaintiff in this that the Mercantile Discount Corporation, mentioned in the complaint, and in exhibit A filed therewith, is a necessary party plaintiff. This demurrer was overruled. Appellant thereupon filed an answer in two paragraphs, the first being a general denial. The second alleges, in substance, that when said fire loss occurred, the Mercantile Discount Corporation, being then, and at the time of the commencement of this action, the insured named in exhibit A, filed with the complaint herein, had a lien on the automobile described therein for the sum of $1,185.43, which was the balance of the purchase price thereof, due and owing from appellee, at the time of the fire and loss, mentioned in the complaint, and when this action was commenced; that the contract sued on was executed by appellant to appellee and said discount corporation, to insure them against loss by fire to said automobile to the extent, severally, of the interests of appellee and said discount corporation; that said automobile was purchased by appellee from the Indianapolis Schacht Truck Company on or about April 1, 1921, under a written contract, whereby title to said automobile *226 was reserved in the seller, or its assigns, until after the full purchase price thereof was paid; that said contract was thereafter duly assigned to said discount corporation with the consent of appellee; that when appellee purchased said automobile, he gave his note to said truck company in the sum of $1,606, as part of the purchase price thereof, which note was also assigned, indorsed and delivered to said discount corporation; that when said fire occurred said contract and note for the purchase of said automobile were both held and owned by said discount corporation; and that the amount due thereon at said time, and when this action was commenced, was said sum of $1,185.43. It is then alleged that appellee is not entitled to recover anything whatsoever on account of the aforesaid interest of said discount corporation under said policy and certificate of insurance; that said answer is partial, and is addressed to so much of the complaint as seeks to recover the amount of the interest aforesaid of said discount corporation. Appellee filed a reply in general denial to this paragraph of answer, and the defendant, George H. Moore and Company filed an answer in general denial to the complaint. The cause was submitted to the court for trial, and on request, a special finding of facts was made and conclusions of law were stated thereon, which were followed by a judgment in favor of appellee against appellant, and in favor of the defendant, George H. Moore and Company.
Appellant contends that the complaint on its face discloses a defect of parties plaintiff, as alleged in its demurrer thereto, and for that reason the court erred in overruling the 1-3. same. In determining this contention, we must bear in mind the provisions of certain statutes, which, omitting the portions not pertinent to the question under consideration, read as follows: "Every action must be prosecuted in the *227
name of the real party in interest * * *. All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs * * *. Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint * * *." §§ 258, 270, 277 Burns 1926, §§ 251, 262, 269 R.S. 1881. In the instant case, the complaint discloses that the contract of insurance, consisting of the policy and certificate mentioned therein, is one in which appellee and the Mercantile Discount Corporation are joint payees, to the extent of the liability for the alleged damage to the automobile in question, conditioned that said discount corporation has an interest therein by reason of an indebtedness due it. It is alleged "that appellee was indebted to the Mercantile Discount Corporation in a certain sum of money, which gave him the right to insure under the terms of the general policy of insurance" issued to appellant, and there is no averment that such indebtedness had been paid. Therefore, we must presume that such indebtedness existed at the time the automobile was destroyed by fire, as alleged, under the rule that a status once established, or a relationship once shown to exist, is presumed to continue until the contrary appears. Spaulding v. Sones (1895),
Appellee contends that the action of the court in overruling the demurrer to the complaint was rendered harmless by the fact that appellant filed an affirmative answer in which it 4-6. tendered an issue as to the amount due the Mercantile Discount Corporation from it, under the contract in suit, by reason of the loss of the automobile in question, and obtained a finding in its favor, based on evidence introduced on the trial. We concur in this contention for the following reasons: When the court made its adverse ruling on the demurrer to the complaint, appellant had the choice of different courses of procedure, under some of which the error of the court in its ruling on said demurrer would have remained available to him *229
on appeal, and under others such error would have become harmless. To illustrate, if it had elected to stand on such ruling, and refused to plead, the error would have remained available as a ground for reversal. If it had elected to file a petition, setting up the facts, and asked that said discount corporation be made a party defendant to answer as to its interest, if any, in the subject of the action, and such petition had been denied, the error in question would have remained available to appellant on appeal, but if such petition had been sustained, and said discount corporation had been made a party defendant, and given an opportunity to set up any interest it may have had in the subject of the action, such error would have been rendered harmless. If it had elected to file an answer not tendering an issue as to any interest of said discount corporation in the amount for which it was liable by reason of the loss of the automobile in question, and a judgment had been rendered against it, the error under consideration would have been available on appeal. In the last named event, a motion in arrest of judgment might have been made, since a demurrer for defect of parties plaintiff had been filed, and a waiver of such defect thereby avoided. Hedekin Land, etc., Co. v. Campbell
(1916),
Appellant contends that the court erred in stating its first and third conclusions of law, which, when taken together, are in effect as follows: The law is with appellee, *231
and judgment should be rendered in his favor against 7, 8. appellant in the sum of $914.03. The reasons presented in support of this contention are equally applicable to each of such conclusions, and hence we will consider them as one, and of the effect stated. It is urged that before such conclusions would be warranted, the finding of facts on which they are based must show that appellee made proof of his alleged loss, within sixty days thereof, as the contract of insurance in suit requires, or that the making of such proof was waived by appellant within such time, and that neither of such essential facts was found. We readily agree with appellant as to the necessity of a finding of one or the other of such facts, and that the one first stated was not found, but we cannot agree that the latter one, viz.: that the making of such proof of loss was waived by appellant was not found. While it is true that the fact of such waiver is not found as an ultimate fact, as would have been proper, primary facts are found which necessitate an inference of a waiver by appellant of the proof of loss within sixty days thereof, and hence such ultimate fact will be treated as found. Judah v. F.H. Cheyne Electric Co. (1913),
Appellant asserts that there is no finding that appellee was the owner of the automobile in question, or that he had any interest therein, either when the contract in suit was 9-11. executed, or when the fire which destroyed the same occurred, and that without such a finding as to both of said times, the conclusions of law under consideration cannot be sustained. In this connection, it must be borne in mind that the intendments and presumptions are in favor of the finding rather than against it, and in ascertaining its meaning and effect, it must be read as a whole, and if, when so read, it can be said to sustain the conclusions of law stated thereon, no error can be successfully predicated on exceptions to such conclusions.Judah v. F.H. Cheyne Electric Co., supra; Harris v. Riggs,supra. When the special finding in the instant case is so read, it discloses the following pertinent statements *234
bearing on the question under consideration: "That upon April 1, 1921, appellant issued to appellee an individual certificate or policy, insuring appellee's car against loss by fire in the sum of $2,000, which policy was in full force and effect at the timeappellee's car was destroyed * * * and on July 15, 1921, said automobile, owned by appellee and insured by appellant, was destroyed by fire * * * and that there is due appellee on account of the loss of his automobile from appellant the sum of $914.03." (Our italics.) These facts are clearly sufficient to overcome appellant's contention in the light of the following decisions: Home Ins. Co. v. Duke (1881),
The contract of insurance in the instant case, covered the body, machinery and equipment of appellee's automobile, "while within the limits of the United States (exclusive of 12, 13. Alaska, the Hawaiian Islands, Porto Rico) and Canada." Appellant contends that there is no finding that appellee's automobile was destroyed by fire while located within the prescribed territory. Even if this be true, the evidence clearly shows without dispute that the automobile was destroyed by fire in the State of Indiana. And a judgment will not be reversed for failure of the court to find a fact in issue which does not appear to have been disputed, and which was established by uncontradicted *235 evidence at the trial. A reversal is not permitted on account of an irregularity which did not, as appears from the whole record, prejudice any substantial rights of the complaining party.
Under the contention that the court erred in overruling appellant's motion for a new trial, it is urged that there is no evidence that appellee, within sixty days after the 14-16. occurrence of his loss, furnished appellant proof thereof, as required by the contract of insurance, or that the furnishing of such proof of loss was waived, and hence any finding to the contrary is not sustained by the evidence. We have held that there is a finding of a waiver of proof of such loss, and we will now proceed to determine whether the evidence sustains such finding, the rule being that slight evidence is sufficient for such purpose. Aetna Ins. Co. v. Jones (1917),
Appellant predicates error on the action of the court in admitting certain evidence over its objections, which we will now consider briefly, although, in our opinion, no 17-21. reversible error is shown. Contention is made that it was error to permit the witness, Fox, to testify that he was an agent for appellant, but it does not appear that the court so found. The error, if any, was therefore harmless. Contention is also made that it was error to permit the witness, Fox, to testify that he paid to the Mercantile Discount Corporation the sum of $1,185.45 under the policy in suit, and to state the manner of such payment. This evidence was competent as a circumstance bearing on the authority of George H. Moore and Company, by whom the witness was employed, to adjust losses for appellant. The further contention is made that it was error to permit the witness, Scharffin, to testify that he, either alone or in company with appellee, went to the Mercantile Discount Corporation several times in the month of July, 1921, after the fire occurred, but this fact of itself was immaterial, and of such a nature as to render its admission harmless. Complaint is made of the admission of the testimony of the last named witness, relating to a conversation he had with Mr. Fox, who, the evidence tends to show, was an employee of George H. Moore and Company in its insurance business, with reference to appellee's loss. This complaint is based on the ground that said George H. Moore and Company had no authority over such loss. Whether said company had any such authority was a matter of fact for the determination of the court, and hence the admission of such evidence was competent, its effectiveness, *238
however, being dependent on a finding that said company had such authority. Complaint is also made of the admission in evidence of an alleged proof of loss by appellee, which was delivered to George H. Moore and Company, based on the ground that it shows on its face that it was executed seventy-one days after such loss, which was on a date subsequent to the sixty day period in which such proof of loss could be filed, in order to be effective as such, and on the further ground that, under the evidence, said George H. Moore and Company had no authority to accept a proof of loss from appellee. It suffices to say in answer to this complaint, that appellant was not harmed by the admission of such evidence, even if it was error to do so, as there is no finding based thereon, and hence it appears that the court was not influenced thereby. Railway, etc., Assn. v. Armstrong (1899),
Finally, it is asserted that the court erred in admitting in evidence a copy of a statement made by appellee to an alleged investigator of the loss in question, and the testimony of 22. the witness Scharffin, as to such investigator making a copy of such statement, and giving the same to appellee. If we concede that this evidence is incompetent, as appellant insists, and, therefore, should not have been received, such concession would not be of controlling influence under the facts of the instant case, in view of the character of such evidence. As said in the case of Shira v. State, ex rel. *239
(1918),
Other contentions are made, but they are so related to the questions we have already determined, that their ineffectiveness as grounds for a reversal of the judgment may readily be seen. We, therefore, conclude our opinion without their individual consideration, as no good purpose would be subserved thereby. Failing to find sufficient grounds for sustaining any one of the errors assigned in this court, the judgment is affirmed.