63 Ind. App. 70 | Ind. Ct. App. | 1916
This was an action in the court below by appellees against appellant on a live stock insurance policy, upon the life of a stallion. Appellant filed its answer in four paragraphs, the first being a general denial. Separate demurrers were filed to the other paragraphs, which were sustained as to the second and fourth paragraphs and overruled as to the third, to which appellees filed a reply in four paragraphs. There was a trial by a jury and a verdict for appellees. Appellant’s motion for a new trial was overruled and this action of the court and its action in sustaining said demurrers are assigned as error in this court. The only questions presented by appellant’s motion for a new trial requires an examination of the evidence. Appellees insist that this is not in the record, because the bill of exceptions containing the evidence was not filed in time.
the court, and the exception by appellant, reads as follows: ‘ ‘ The court being fully advised in the premises now sustains the demurrer of the plaintiff to the second and fourth paragraphs of answer, heretofore filed, to which ruling of the court the defendant at the time objects and excepts. And the court being fully advised in the premises now overrules the demurrer of the plaintiff to the third paragraph of answer, to which ruling of the court the plaintiff at the time objects and excepts.” This ruling of the court was on each of the separate and several demurrers to said paragraphs. The demurrers being separate and several, and the ruling of the court being on each of them, such ruling must be held, in our opinion, to he separate and several. If this is true, then appellant’s exception must be held to be separate and several. Whitesell v. Strickler (1906), 167 Ind. 602, 78 N. E. 845, 119 Am. St. 524. The authorities cited by appellees are not in point. They hold that an assignment of error, which calls in question several rulings of the court, is joint and not several. Appellant has not only assigned as error the rulings jointly, but separately, and we hold that the sufficiency of each of. said paragraphs is thei’eby presented. Appellees, as heretofore noted, insist that the evidence is not in the record, but they also insist that since evidence was introduced in support of the paragraphs of answer, to which demurrers were' sustained, that the sustaining of. said demurrers, if error, -was harmless. We were required,
Appellant’s second paragraph of answer, among other things, alleges that appellees, in their application, on which the policy sued upon was issued, and of which said application was made a part, made a false answer to a question, knowing that such answer was not a fact, and that the appellees warranted the answer to be true, and that appellant relied upon the answer as being true and relied upon said warranty, and was induced thereby to issue said policy; that
The application upon which the policy in suit was issued was not made a part of appellees’ complaint, nor was it necessary to do so; nor was it necessary for the appellees to allege or prove, in the first instance, that the answers in such application were true to entitle them to recover upon the policy. So, under the well-established rules, the matter alleged in said second paragraph/ of answer was not admissible under the general denial, but was matter of defense requiring a special answer. In Phenix Ins. Co. v. Pichel (1889), 119 Ind. 155, 21 N. E. 546, 12 Am. St. 393, it is decided: “In an action upon a policy of insurance, the plaintiff need not aver the truth of statements contained in the application, nor the performance or non-performance of conditions subsequent, nor negative prohibited acts; but it is sufficient for him to show fulfilment of the conditions of recovery, and the burden is then upon the defendant to show a breach of warranties.” See, also, Penn Mutual, etc., Co. v. Wiler (1885), 00 Ind. 92, 50 Am. Rep. 769; Louisville Underwriters v. Durland (1890), 123 Ind. 544, 24 N. E. 221, 7 L. R. A. 399; Continental Life Ins. Co. v. Kessler (1882), 84 Ind. 310.
Some of the conditions of said policy are: “This company shall not be liable if any fact or circumstances relating to this risk has not been fully and correctly stated to this company by' the assured, * * * or if any of the warranties contained in the application, upon which this policy is based, shall be found to be not a fact.” The application set out in appellant’s said paragraphs of answer, and alleged to have been a part of the policy, has these provisions: “It is understood that the applicant has answered all of the foregoing questions of his own knowledge, and warrants his answers to be facts, and that the policy to be issued hereon shall be based entirely upon the answers contained in this application, * * *. I warrant the above answers to each of the foregoing questions as they are written.”
Appellees contend that because it is shown that “Owens & Patterson” signed the application and that the answer to one of the questions is “myself,” and that appellant’s answers refer to the appellees as “plaintiff,” that there is such a failure to identify the appellees as to render the said paragraphs of answer bad. We cannot see that the use of these words affect the question of warranty, but they do affect the question of what construction should be put on the. words in determining whether the warranties are true. While a partnership between Owens and Patterson is not averred, there can be but one inference drawn from the complaint and that is that they were partners in the ownership, care and management of the stallion. A strict construction against the company of the first question and answer above set out would require the appellant, in order to maintain its second paragraph of answer, to show that the partnership of Owens and Patterson had lost live stock by death, accident, disease or theft within two years prior to the time of the signing of
"We are unable to find anything- in the application, which contains the warranties, authorizing us in holding, under the well-established rules of construction, that the answer to either question set out in the second and fourth paragraphs of answer is a representation merely, requiring facts to be alleged showing that the falsity of such representations was material to the risk; and ive are required to hold that the court erred in sustaining the demurrer to each of said paragraphs.
The cause is reversed, with instructions to overrule said demurrers, and to permit the parties to file such motions and pleadings as they may desire.
Note.—Reported in 118 N. E. 1024. Live stock insurance, validity and construction of policy, Ann. Cas. 1915A 614; 25 Cyc 1519; 44 L. R. A. (N. S.) 569. Distinction between a warranty and a representation in insurance, 4 Ann. Cas. 255. See under (10) 19 Cyc 656; 25 Cyc 821.