101 Ind. 392 | Ind. | 1885
In this case the appellee, the Union Mutual Life Insurance Company, alleged in its complaint that the appellant, the Phenix Insurance Company, of Brooklyn,
Appellant answered specially in three paragraphs, numbered respectively the third, fourth and fifth paragraphs, to
The only error relied upon, in argument, by the appellant, is the sustaining of the demurrer to the third paragraph of its answer. Under the settled practice of this court, the •other errors assigned in general term are regarded here as impliedly waived.
In the third paragraph of its answer, the appellant alleged that in and by the terms of the policy in suit, it is provided, among other things, that in the event of the commencement of foreclosure proceedings against the premises insured, or if the risk be increased by any means whatever within the control of the insured, without the appellant’s consent endorsed on such policy, then and in every such case the policy should become void. And the appellant averred that after such policy was so issued, and after the mortgage clause was so inserted for the benefit of the appellee, the appellee caused, without any notice whatever to the appellant, a suit for the foreclosure of such mortgage to be commenced in the circuit court of the United States, for the District of Indiana, a court having jurisdiction to hear and determine such matter, and was prosecuting such suit at the time such loss occurred, without the knowledge or consent of the appellant; whereby the risk of loss by fire to such property was greatly increased, and thereby, by the terms of such policy, such contract of iusurance became void.
The part of the mortgage clause, inserted in the policy in suit for the appellee’s benefit, upon which the third paragraph of answer seems to have been founded, reads as follows:'
“ It is hereby agreed that this insurance, as to the interest of the mortgagees only therein, shall not be invalidated by*395 any act or neglect of the mortgagor or owner of the property insured, or by the occupation of the premises for purposes more hazardous than are permitted by this policy. It is further agreed that the mortgagees shall notify said company of any change of ownership or increase of hazard which shall ■come to his knowledge, and that every increase of hazard not permitted by the policy to the mortgagor or owner, shall be paid by the mortgagees on reasonable demand, according to the established scale of rates for the use of such increased hazard, during the then current year.”
The third paragraph of answer proceeds upon the theory that the commencement of the suit by the appellee and mortgagee to foreclose its mortgage, of itself, so greatly increased the risk of loss by fire to the property insured, as necessarily to avoid the contract of insurance. No authority is cited in support of this theory, and we know of none, and we are ■certain, that under the agreements in the mortgage clause, such .a theory can have no application to the case in hand. Here the appellant stipulated in the mortgage clause that it should be notified by the appellee “ of any change of ownership or increase of hazard ” which should come to the latter’s knowl•edge. The appellant was bound to know that, under the laws ■of this State, if default were made by the mortgagor in the payment of the mortgage debt, the appellee could enforce its mortgage in no other manner than by “ foreclosure proceedings against the premises.” While it is true that such foreclosure proceedings might ultimately, after a litigation more ■or less protracted, lead to a change of ownership of the premises insured, yet it is equally true that the mere commencement of such proceedings can not be regarded, in any sense, as tantamount to or the equivalent of the “ change of ownership ” mentioned in the mortgage clause. Besides, it may well be supposed that if the appellant had desired to be notified of the commencement of foreclosure proceedings, or had supposed that the mere commencement of such proceedings
The courts can not assume that the mere commencement of the foreclosure proceedings, of itself, increased the hazard of the risk in the case before us to such an extent as would, in the absence of notice or consent, avoid the contract of insurance. The facts must be averred, from which the inference inevitably follows, that the hazard was greatly increased by the commencement of the foreclosure proceedings. The appellant closed the third paragraph of its answer as follows: “ Whereby the risk of loss by fire to the property was greatly increased, and thereby, by the terms of the policy, the contract of insurance became void.” This is merely the pleader’s-conclusion, and the paragraph of answer was bad on demurrer, because the precedent facts averred in the paragraph were not sufficient to authorize any such conclusion, either of law or of fact.
We find no error in the record of this cause.
The judgment is affirmed, with costs.