132 Ind. 360 | Ind. | 1892
— This was a suit by Replogle, the appellant, to recover on a policy of fire insurance issued by the American Insurance Company, and re-insured in the Home Insurance Company.
The policy, a copy of which was filed with the complaint, contained the following provision :
“ 6. It is further provided and agreed that if the assured shall have, or shall hereafter obtain, any other insurance on the property hereby insured, or any part thereof, without the consent of the secretary of this company written thereon, ******* £ys p0]jCy shal] be void, and the assured shall not be entitled to recover from this company any loss or damage which may occur in or to the property hereby insured, or any part or portion thereof.”
The appellees answered in four paragraphs. The first was a general denial, while the remaining three were based upon allegations that, after the policy was issued, and before the loss occurred, the assured, in violation of the condition above stated, without the knowledge or consent of the appellees, procured other and additional insurance on the same property in the Ohio Farmers’ Insurance Company.
The sufficiency of the special answer is questioned on the ground that no copy of the policy upon which the suit was brought was filed with them. This was not necessary. As above stated, a copy of it was filed with the complaint. The answers were in confession and avoidance, and did not seek any affirmative relief. They necessarily admit the truth of all material and well pleaded facts in the complaint and the
The appellant filed a reply in four paragraphs. The first is a general denial. The second alleges in substance that the policy issued by the Ohio Farmers’ Insurance Company contained a provision relating to other insurance similar to that contained in the policy sued on, and alleges that when it was issued the policy sued on was in full force; that the assured did not notify the Ohio Farmers’ Insurance Company of its existence, and that that company never at any time, nor in any manner, consented to the additional insurance. It is insisted that by reason of these facts the policy issued by the Ohio Farmers’ Insurance Company was void, and did not constitute additional insurance so as to avoid the first policy.
This is the second appeal of this case, the decision on the first appeal being reported under the title, American Ins. Co. v. Replogle, 114 Ind. 1. In the opinion there rendered the sufficiency of this paragraph of reply was fully considered, the late Judge Mitchell announcing the opinion for the court. Counsel for the appellant question the correctness of the conclusión there reached. It would be sufficient to say that, right or wrong, it is the law of the case and must stand. We will, however, add, that that opinion has our unqualified approval. We regard it as a fair and correct exposition of the law. The fourth paragraph of reply alleges, in substance, that the Ohio Farmers’ Insurance Company is a mutual company; that the assured became a member of the company by taking a policy, and that the charter
We quote, as apropos, the language of Judge Mitchell in American Ins. Co. v. Replogle, supra.
“The primary purpose of inserting conditions against other insurance is to protect the company from the hazard of over insurance. The condition implies that the insurance company will decline the obligation of insurer whenever the relations of the owner to the property are such that he would be benefited by, and might, therefore, have a motive for, its destruction. Consequently, it aims to secure the continued vigilance and co-operation of the owner in preserving the property, and to compel him to maintain such an interest in, and relation to,the property as to have no motive for the relaxation of his care over it. * * Whenever,therefore, the property owner, in violation of a condition such as that in question, applies for and obtains a second policy, valid upon its face, With the intent and purpose to carry the second policy as valid insurance, without giving notice thereof, he has, thereby defeated the whole policy and purpose of the condition, and has done that which constitutes a complete defence to an
In our opinion the fourth paragraph is no better than the second.
The third paragraph of reply is as follows:
“ For further reply to the second, third and fourth paragraphs of answer herein the plaintiff says that after the destruction by fire of the property mentioned in the complaint herein, the defendants, with a full knowledge of all the facts set out in said paragraph of answer, required plaintiff, upon notice by him to them of said destruction of said property by fire, to make due and full proofs of said destruction by fire of said property, and of his loss thereby, and required him, after he had made said proofs, which he deemed sufficient, to make out additional proofs of said destruction of said property by fire, and required him to furnish plans and specifications of the buildings so destroyed, and required him to go from his home in Wayne county, Indiana, to Indianapolis, Indiana, and learn what additional proofs were required, all of which the plaintiff did at great expense to him in money expended, and in time devoted to making said proofs and said additional proofs, in making and procuring said plans and specifications, and in going to said city of Indianapolis, all at an expense in money and time of fifty dollars ($50). And plaintiff says that during all this time defendant, though fully advised, and knowing all the matters set up in said paragraphs of answer, did not notify plaintiff that any objection would be made by defendants to the payment of the sum secured by said policy of insurance on account of any of the matters set forth in said paragraph of defendant’s answer. Wherefore plaintiff alleges a waiver of said defenses to this action, and avers that the defendants are, or ought to be, estopped to defend against this suit on account of any of said matters. Wherefore,” etc.
In the case of Titus v. Glens Falls Ins. Co., supra, the court says : “ When there has been a breach of a condition contained in an insurance policy, the insurance company may or may not take advantage of such breach and claim a forfeiture. It may, consulting its own interest, choose to waive the forfeiture, and this it may do by express language to that effect, or by acts from which an intention to waive may be inferred, or from which a waiver follows as a legal result. A waiver can not be inferred from its mere silence. It is not obliged to do or say anything to make the forfeiture-effectual. It may wait until claim is made under the policy, and then, in denial thereof, or in defence of a suit commenced therefor, allege the forfeiture. But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon,, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law waived; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.”
In Cannon v. Home, etc., Ins. Co., supra, the Supreme Court
To the same effect, and equally emphatic, is the case of Gans v. St. Paul Fire, etc., Ins. Co., supra.
The proposition above quoted from Titus v. Glens Falls Ins. Co., supra, was approved by this court in Phenix Ins. Co. v. Tomlinson, 125 Ind. 84 (93).
If these cases decide the law correctly (and we think they do), the reply before us is good. It is expressly averred that the appellee, with full knowledge of the facts, not only required the appellant to make proofs of his loss, but, after he had made proofs, required him to make additional proofs, and to furnish plans and specifications of the buildings destroyed, and to go from his home in Wayne county to Indianapolis, at an expense of fifty dollars.
Appellees insist, however, that conceding the reply to be good, and that the court erred in sustaining a demurrer to it, the error was harmless, for the reason that evidence of the facts averred was admissible under the allegations of the complaint that the appellant had furnished the proofs of loss required by the policy, and had kept and performed all conditions, etc. And that it was also admissible under the general denial. Evidence was not only admissible under
Counsel also ask us to look to the finding of facts by the court, and to the conclusions of law, for assurance that there was no waiver of the forfeiture.
The question as presented to us is one of pleading alone. Did the court err in sustaining a demurrer to this paragraph of reply ? We can get no aid in the determination of this question from the finding, or from an examination of the evidence. The court by its ruling on the demurrer held that such facts as were pleaded, even if proven, would not constitute a waiver. The presumption is that the court, having by this ruling adopted such theory, adhered to it throughout the case, and admitted no evidence, and made no finding relative to such alleged facts. Elliott App. Proc., section 591, and authorities cited. It will be presumed, also, that whatever evidence, if any, the appellant may have had in support of this paragraph of reply, was not offered, and would, therefore, not appear in any manner in the record.
It was the right of the appellant to assume that the court would adhere to the theory indicated by its ruling in sustaining the demurrer, and he was not required to, and presumptively would not, offer any testimony relating to the questions covered by such ruling. We must presume that the cause wás tried and decided upon that theory. The
The judgment is, therefore, reversed, with costs.