74 Ind. App. 685 | Ind. Ct. App. | 1920
Lead Opinion
Action by appellee to recover on a fire insurance policy for a loss sustained.
The complaint in one paragraph in substance alleges the issuance of the policy involved October 1, 1915, insuring against loss by fire in the sum of $700 on the saloon stock, and $500 on the furniture and fixtures. The property was wholly destroyed by fire November 16, 1915. It was owned by appellee and was of the value of $1,600. Immediate notice of the loss was given, and within sixty days thereafter appellee rendered a particular account of the statement of the loss. Appellee had performed all of the conditions of the contract, but appellant refused to join in estimating the loss, and refused to pay anything on account of said policy and the loss sustained thereunder. There was a prayer for judgment in the sum of $1,350.
Appellant answered in five paragraphs, the first being a general denial. The second was based upon the provisions of the policy that it would be void if the property insured be, or become incumbered by chattel mortgage, it being averred in said paragraph that at the time of the issuance of the policy the property was subject to two chattel mortgages.. Paragraph 3 was based upon the provision of the policy that the same should be void if the property be incumbered with a chattel
There was a reply in denial to the second, third and fourth paragraphs of answer, and a second paragraph of reply to the second, third, fourth and fifth paragraphs of answer, which averred that “defendant by and through its duly authorized agent James L. Smith waived each and every provision, condition and requirement” set forth in said paragraph of answer. A demurrer to this second paragraph of reply was overruled. The cause was tried by a jury, and a verdict rendered for appellee in the sum of $1,302.50. After the motion for a new trial was overruled, and judgment rendered upon the verdict, this appeal.
As the transcript was sufficient for appellee’s purpose in the trial court, it will meet our requirements. The objection comes too late. Indianapolis, etc., Transit Co. v. Andis (1904), 33 Ind. App. 625, 72 N. E. 145. The pleadings and issues thereon will be considered.
In the case of Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 601, 100 N. E. 675, 102 N. E. 99, it was held that, in construing the pleading where a demurrer is interposed, it will be deemed sufficient whenever the necessary allegations can be fairly gathered from all the averments, and that all facts will be deemed stated that can be implied from the allegations made by fair and reasonable intendment, and facts so impliedly averred will be given the same force as if directly stated, citing a long .list of authorities.
It was held in the case of Webb v. Citizens Nat. Bank, etc. (1917), 70 Ind. App. 22, 115 N. E. 799, that where one Voigt, for and on behalf of one Holzbog, after making inquiry of appellee as to the amount of money
The court instructed the jury with reference to such mortgage that the company was obliged to act with reasonable promptness and notify the assured of its election to treat the policy as void. During the trial witness Smith testified that he had a conversation with appellee on February 26,. 1916, at which time he tendered him the return of his premium. The following question was then propounded to the witness Smith: “What, if any, effort had you made preceding the time you did tender the premium to Dobbs, to find him?” The witness commenced to answer by saying: “I called up the hotel a time or two at Jasonville trying to locate him.” Thereupon the appellee objected to the question for the reason that it was immaterial, time put in in hunting him being of no significance. Appellant then offered to prove by the witness that for several weeks preceding the tender of the premium he sought to find appellee at his usual place of habitation, but until the tender was made he was unable to find him. Objection was then sustained to this question. As to what is reasonable time depends upon the circumstances of each particular case. It appears in this case that there had been some delay in
Rehearing
On Petition for Rehearing.
Appellant earnestly contends that the question decided in the original opinion that refers to the admissibility of evidence was not before the court for the reason that the record does not show the filing of the bill of exceptions.
It will be observed that the clerk’s certificate is dated within the time fixed for the filing of the bill of exceptions. We hold that it sufficiently appears both by appellant’s brief and by the record that the bill of exceptions was filed, and that it was filed within the time required by the court’s order.
The petition for rehearing is overruled.