38 Ind. App. 11 | Ind. Ct. App. | 1906
Action on a policy of fire insurance. The plaintiff had verdict and judgment for $597.50. The complaint is in two paragraphs. They are not challenged by demurrer, and, while the second paragraph is attached by assignment of error, no argument in support thereof is made. We do not approve the pleading by inference or otherwise. An answer in three paragraphs was filed, in the second of which it was averred that the policy sued upon contained a provision as follows:
“This policy may he canceled at any time, and if canceled by the insured and the premium has been actually paid in cash the company may retain the customary short rate for the time elapsed from the date of the policy to the time it is received at the office of the company in LeRoy, Ohio, for cancelation.”
It is further averred that the plaintiff did not pay the premium on such policy, but executed her promissory note therefor, due on or before January 1, 1901; that she failed and refused to pay said note at maturity, and failed to pay said premium; that defendant placed said note in the hands of an attorney for collection; that the plaintiff, upon being requested to pay said note, refused to pay the same and returned said policy to defendant for cancelation upon' March 13, 1901; that such policy was accepted by defendant and entered upon its books as canceled upon said day. The property is alleged in the complaint to haye been destroyed by fire on March 18, 1901. Other paragraphs of
Appellant’s motion for a new trial was overruled. It presented the question as to the sufficiency of the evidence to sustain the verdict. The evidence is in the record. The policy sued on contains a clause in terms as set out in the answer. It is established that appellee’s husband, O. D. Hunter, acted as her agent throughout the transaction, and, on the date named, in such capacity, wrote the following letter:
“O. D. Hunter, Dry-Goods, Notions and Groceries, Notary Public. Memphis, Indiana, 3-13-1901.
Jerry Bundy.
Dear Sir. I send you my policy and I want you to send me my notes' and this will settle the matter with us. I will give you the $5 I paid you and you send me the notes. I did not think you took the notes but you did, and you know that was not right.
Tours,
O. D. Hunter.
I have your card telling me to send policies in.
O. D. Hunter,
Memphis, Indiana.”
In view of these facts, consideration of other questions argued becomes unnecessary.
Judgment reversed, and cause remanded, with instructions to sustain motion for new trial.