59 Ind. App. 69 | Ind. Ct. App. | 1915
Appellee recovered from appellant upon a policy of burglary insurance. The important question in the appeal is whether the policy was in force. This question arises upon the demurrer to the complaint, upon exception to the conclusions of law upon the facts found, and upon the motion for new trial.
Briefly, the facts found by the court show that the New Palestine Bank, a private bank, operated under the statutes of this State, with authority to contract, sue and be sued in its above name, organized as a partnership, was in the year 1911, composed of four partners, John H. Binford, Edward Fink, Charles J. Richman and Henry Fralich. In February and March, 1911, this bank, through Charles J. Richman, began negotiations with H. H. Woodsmall & Company, general agents for appellant, with reference to securing a policy of burglary insurance for said bank, and in order to inform said general agents of the facts relating to the bank as an
“Please find herewith policy for New Palestine Bank for correction as follows: Schedule Statement 2. Names of persons constituting same are Henry Fralich and Charles J. Riehman in addition to those named in the policy. Statement 19. We carry no other insurance, it is here stated that we carry a policy in the National Surety. Please correct and return to me. Yours truly, Chas. J. Riehman.”
Woodsmall forwarded the policy to the home' office for alterations as requested, and between October 8 and 12,1911, received notice from the home office that the company refused the business. The policy was retained by the home office and marked cancelled, and no other policy issued, and no demand for the premium was ever made from appellee, and appellee never tendered the premium until after the loss when the tender was refused.
At some time during the night of October 20-21,1911, the building in which the New Palestine Bank conducted its bank business and in which the safe and vault specifically described in the policy sued on were contained, was forced open by some persons unknown to appellee and the safe and vaults of the bank were forced open and entry gained thereto by persons with burglary intent, by the use of tools and explosives, and the person or persons feloniously, violently and forcibly, abstracted during the nighttime from the safe, cash, money and bullion to the amount of $2,487.77, and did further by the use of the tools and explosives while so making such entry into the safe and vaults, damage the safe and vaults in the sum of $605. On October 23, 1911, appellee, by night letter, and also by written letter, mailed to appellant at its home office, notified appellant of the burglary and loss under the policy and requested that
No error appears, and the judgment is affirmed.
Note. — Reported in 107 N. E. 554. As to the law of burglary and theft insurance, see 40 L. R. A. (N. S.) 561. Waiver of conditions in insurance policy by insurer’s knowledge of existing facts, see 2 Ann. Cas. 280 ; 18 Ann. Cas. 686. See, also, under (4) 30 Cyc. 560, 561; (6) 38 Cyc. 1915 Anno. 277-new.