74 Ind. App. 193 | Ind. Ct. App. | 1920
The complaint in this áction by appellee against appellant was in two paragraphs. The first alleges that appellee was the owner of certain buildings in Orange county, Indiana, which were destroyed by fire on March 1, 1917; that he was insured by a policy issued to him by appellant against loss by fire of said buildings, and seeks a recovery on the fire insurance policy. The second, with averments similar to the averments of the first paragraph, avers further that after the fire it was agreed between appellee and appellant that'if appellee would forbear the collection of his claim for loss, appellant would pay the same in sixty days from the time of the agreement, and seeks a recovery on the alleged agreement.
Appellant’s second paragraph of answer, with other averments, quotes from the company’s constitution to the effect that “in case of loss he (the treasurer) shall promptly notify each member of the association of the amount of his assessment,” and from the by-laws to the effect that “any member of this association who fails or • refuses to pay his or her assessment within thirty days of the loss shall forfeit their insurance in case they were to meet with a loss while thus delinquent,” and then avers that prior to September 25, 1916, certain losses had occurred for the payment of which an assessment was made, and that appellee’s quota thereof was $5.15; that on said September 25, 1916, the treasurer of said association notified all members, including appellee, of such assessment, and of the amount due from them respectively, and at the time of payment, which notice was in writing, was correctly addressed to appellee at the place of residence given by him to appellant for the sending of such notices to him, and at the postoffice of his actual residence, was sufficiently, and properly stamped, was deposited in the mails of the United States by said treasurer, was received by appellee in due and
Appellant’s third paragraph of answer was in substance like the second, omitting therefrom the averment that the notice was received by appellee in due and regular course of mail, etc., and adding thereto that such notice was never returned to appellant, or its treasurer, or any other person or official, after it was mailed, and the further averment of its custom to so notify its members, including appellee, at all times since its organization in 1897, and to notify them in no other way. Appellant’s fourth paragraph of answer is in substance like the third, with the additional averment that appellee knew of the fires and losses for which the assessment was made, that an assessment was a necessity; that such assessment had been made and was being collected; that he was subject to assessment; that when an assessment was made it was made against all members; that he knew that an assessment had been made against him; that if he did not pay it he would become delinquent and his policy suspended; that he made no inquiry of any kind whatever; and that the period for the payment of his assessment had expired for more than four months.
In McCorkle v. Tex. Benevolent Assn. (1888), 71 Tex. 149, 8 S. W. 516, the custom was to notify by mail, and the court held that a reasonable construction of the bylaws required that notice should be in fact given to a
It is averred in the fourth paragraph of answer that appellee knew of the fires and losses, and that assessments were necessary, and that they were made. There is no averment as to how he knew, and we cannot assume that he had such information in a regular way. from appellant. He cannot be bound by hearsay and. rumor. “Information from a third party of the fact which the notice concerns does not constitute notice of such fact, nor is it such knowledge thereof as obligates him to act thereupon at his peril, or to reasonably put him upon inquiry.” 2 Joyce, Insurance (2d ed.) §1328; 29 Cyc 171. Hannum v. Waddill (1896), 135 Mo. 153, 36 S. W. 616. The averments of the third and fourth paragraphs of answer were of evidential facts which the jury might very properly consider in determining whether actual notice had been received, but the direct averment that the notice had been actually received as averred in the second paragraph was necessary in the pleading. All facts averred in the third and fourth paragraphs tending, to prove, actual notice were admissible under the second paragraph. There was no error in sustaining the demurrer to each of the third and fourth paragraphs of answer.
The demurrer to thé fifth paragraph of reply was properly overruled.
In appellant’s motion for a new trial the only errors presented are the giving of certain instructions. There is no claim that the verdict was not sustained by sufficient evidence, or that it was contrary to law. With the principle of law established that the ultimate fact that appellee actually received the notice must be proved to the satisfaction of the jury and that the burden is on appellant so to prove it, we have examined the instructions, and find no reversible error in giving any one of them. The judgment is affirmed.