36 Ind. App. 238 | Ind. Ct. App. | 1905
The appellee’s complaint consisted of four paragraphs, to each of .which the appellant demurred for want of sufficient facts. The demurrer was sustained as to the first two paragraphs, and was overruled as to the third and fourth paragraphs. In the third paragraph it was alleged that the appellant, by its policy of insurance numbered 1,179,129, and dated October 8, 1902, in consideration of $7.50, insured the Crawfordsville Sanitarium against loss or damage by fire, to the amount of $300, for the term of one year, commencing on the 8th day of October, 1902, at noon, and ending on the 8th day of October, 1903, at noon, on the surgical instruments, medical books, bookcases,
The fourth paragraph was like the third, except that it declared upon a draft for a different amount — $374.22—al-leged to have been given for loss caused by the same fire in settlement of another policy of a different number, issued By the appellant Hovember 12, 1902, for $500 on the same property. The two drafts were made exhibits, being alike except as to amounts and as to the numbers of the policies mentioned therein; that declared upon in the third paragraph of complaint being as follows: “$224.54. Manchester, New Hampshire, March 3, 1903. At sight pay to the order of Crawfordsville Sanitarium the sum of $224.54, in full for claim under policy Ho. 1,479,429, issued at Crawfordsville, Indiana, agency, as per receipt attached. E. E. Martin, A. Secy.”
Among the alleged errors for which and for each of which the appellant prays that “the judgment of the Montgomery Circuit Court be in all things reversed,”' are the rulings upon the two motions for a new trial which are separately assigned as errors.
The assignment of error based upon this ruling is essentially an attack upon a part of the final judgment, from which the appeal is taken, as are also the assignment of error in overruling the motion in arrest of judgment, and the several assignments relating to the overruling of the motions for a new trial.
No question has been made here as to the failure to make Helfrich a party to the appeal. The question as to the sufficiency of the third and fourth paragraphs of the com
The appellee and Helfrich furnished to the appellant statements of articles and their value as the basis of their claim of loss. These were afterwards changed and amended, though not added to, but diminished, in amount. The total sound value of the property insured and listed by the appellee and Helfrich was $2,696.90. The total amount of loss and damage as stated in the proofs of loss by the appellee and Helfrich was $1,496.90. This was the total fair cash value at the time of the fire of all the property injured and destroyed or damaged by fire. The defendant insurance company had knowledge as to who composed the Crawfordsville Sanitarium at the time of the loss by fire. It was neither a corporation nor a partnership. Helfrich owned a portion of the surgical instruments, and the value of the property so owned by him at the time of the fire was $65. The remainder of the property in the sanitarium at the time of the fire, other than that owned by Helfrich, was owned by the appellee. On or about December 29, 1902, the appellee and Helfrich furnished the adjuster of the appellant a written statement of the amount of goods destroyed by fire, which showed the total value at $3,674.05. On or about January 6, 1903, they furnished the adjuster a detailed written statement of all said property from catalogue and memory, showing the same total value. January 7, 1903, they submitted to the company proofs of loss amounting to $1,496.90. March 3, 1903, the appellee is
The total amount of insurance held by the Crawfordsville Sanitarium on the property insured by the appellant at the time of the fire, was $2,000. The amount of the drafts drawn by the appellant “in settlement” of its proportion of this loss was $598.76. These drafts were delivered to the appellee March 3, 1903, and the appellant then took a receipt therefor. At the time of this delivery of the drafts “in the settlement of said loss,” the appellant had, by its agent, information or knowledge of the amount and character and value of the property destroyed by fire, other than such information as had been given to it and its agents by the appellee and Helfrich.
Counsel remark concerning the third and fourth paragraphs of complaint, that they do not aver a partnership or a joint interest in the Crawfordsville Sanitarium, the allegation as to ownership being that “plaintiff and Harry J. Helfrich were the owners of said sanitarium property at the time said policy of insurance was issued and at the time said property was destroyed and damaged by fire on the 26th day of December, 1902,” and that in January, 1903, Helfrich, for a valuable consideration, sold to the appellee all his claims for loss or damage to said sanitarium property under said policy, and thereafter, in March, 1903, the appellant in settlement of said loss and cancelation of the policy delivered to the appellee the drafts in suit, and Helfrich was. made a defendant to answer as to his interest. It is said by the appellant in argument that the appellee is in no better position as plaintiff than he and Helfrich would have been if the suit were one brought by them jointly; and the appellant regards it as necessary to the sufficiency of the complaint that it should appear therefrom that a partnership existed between these persons.
In Castner v. Farmers Mut. Ins. Co. (1881), 46 Mich. 15, 8 N. W. 554, the plaintiffs, mother and son, sued upon a policy of insurance issued to them jointly on a dwelling and personal property contained in it, both of which were destroyed by fire. The son owned the fee, subject to his mother’s life interest. The personal property was-owned in severalty; the son’s property being the larger part. One defense was that the property was not joint. It was by the court regarded as not necessary that the precise nature of the interest should appear in the application or policy, unless distinctly required; that when the entire property belongs to the persons insured it can make no necessary difference to the insurer in what way their interests are apportioned; and that, if the company deems it material, it should inform the applicant before accepting his money. See, also, Guest v. New Hampshire Fire Ins. Co. (1887), 66 Mich. 98, 33 N. W. 31; German Mut. Ins. Co. v. Niewedde (1895), 11 Ind. App. 624, 627.
We do not find available error. Judgment affirmed.