Aetna Insurance Co. v. Strout

• Decision Date: 13 October 1896
• Docket Number: 1,680
• Parties: AETNA INSURANCE COMPANY v. STROUT
• Court: Indiana Appellate Court

44 N.E. 934

16 Ind.App. 160

AETNA INSURANCE COMPANY v. STROUT

No. 1,680

Court of Appeals of Indiana

October 13, 1896

From the Lawrence Circuit Court.

Affirmed.

Newton Crooke, F. A. Crooke, S. N. Chambers, S. O. Pickens and C. W Moores, for appellant.

J. H Willard, for appellee.

OPINION

GAVIN, J.

Appellee recovered judgment for the value of certain patterns destroyed by fire and covered by an insurance policy issued by appellant.

The complaint was not bad for the want of a direct averment of the consideration and time of expiration of the policy. The policy itself was made a proper exhibit and supplied both these facts. Jaqua v. Woodbury, 3 Ind.App. 289, 29 N.E. 573; Reynolds v. Baldwin, 93 Ind. 57.

The complaint alleged that after notice the company's agent and adjuster investigated the circumstances attending the loss, and the "defendant" then denied all liability "to plaintiff on account of said loss and refused to pay the same, or any part thereof, and informed plaintiff that she could not make any proof of loss for the same," by reason whereof no proofs were made. Such a denial of liability operates as a waiver of the proofs. Continental Ins. Co. v. Chew; 11 Ind.App. 330, 38 N.E. 417; Bowlus v. Phenix Ins. Co., 133 Ind. 106, 20 L. R. A. 400, 32 N.E. 319; Commercial, etc., Assurance Co. v. State, ex rel., 113 Ind. 331, 15 N.E. 518.

The principal question in the case arises upon the construction of that part of the policy which describes the property. The policy reads: "To an amount not exceeding two thousand dollars ($ 2,000.00) on the following described property while located and contained as described herein and not elsewhere, to-wit: Seven hundred and fifty dollars on her one-story framed, metal roofed building, belonging to assured and situate on lot No. 6, in Noye's addition to the city of Bedford, Indiana; $ 250.00 on boiler and engine, while contained in above described building; $ 1,000.00 on machinery and tools, consisting of two drill presses, three lathes, one planer, one blower, one emery stone and frame, and belting for machinery, and patterns and other tools."

The patterns were burned while in the pattern house, and not in the building described above.

It is contended by appellant that the patterns covered by the policy are only those in the brick building described and while therein. Appellee, on the other hand insists that there is in the policy no limitation as to the location of the patterns.

The rule for the construction of such contracts as this is thus expressed in the case of Imperial Fire Ins. Co. v. Coos County, 151 U.S. 452, 38 L.Ed. 231, 14 S.Ct. 379: "It is settled, as laid down by this court in Thompson v. Phenix Ins. Co., 136 U.S. 287, 34 L.Ed. 408, 10 S.Ct. 1019, that, when an insurance contract is so drawn as to be ambiguous, or to require interpretation, or to be fairly susceptible of two different constructions, so that reasonably intelligent men on reading the contract would honestly differ as to the meaning thereof, that construction will be adopted which is most favorable to the insured." This rule governs in our own State. Penn Mut. Life Ins. Co. v. Wiler, 100 Ind. 92; Rogers v. Phenix Ins. Co., 121 Ind. 570, 23 N.E. 498; Standard, etc., Ins. Co. v. Martin, Admr., 133 Ind. 376, 33 N.E. 105; Indiana, etc., Ins. Co. v. Rundell, Admr., 7 Ind.App. 426, 34 N.E. 588.

We are of opinion that the clauses of the policy under consideration were clearly susceptible, at least, of the interpretation placed thereon by the trial court that they did not limit the insurance on the patterns to such as were, when burned, in the building mentioned, because there was no place described as the location of these articles. We would not be justified in saying that the only construction reasonably permissible is to carry forward the words "while contained in above described building," which define and limit the location of the engine and boiler and apply them by implication to the subsequent clause.

The case of Hews v. Atlas Ins. Co., 126 Mass. 389, differs from this in the order of the wording of the phrases in the policy, and we cannot, in harmony with the principles of law above announced, extend it so far as to cover this case.

The special...