American Fire Ins. Co. v. Sisk

• Decision Date: 20 February 1894
• Citation: 9 Ind.App. 305,36 N.E. 659
• Parties: AMERICAN FIRE INS. CO. v. SISK et al.
• Court: Indiana Appellate Court

9 Ind.App. 305

36 N.E. 659

AMERICAN FIRE INS. CO.

v.SISK et al.

Appellate Court of Indiana.

Feb. 20, 1894.

Appeal from circuit court, Knox county; G. W. Shaw, Judge.

Action by Eliza M. Sisk and another against the American Fire Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. H. De Wolf, for appellant. Cullop & Kessinger, for appellees.

DAVIS, C. J.

This was an action upon a fire insurance policy issued by appellant to appellees on the 2d day of March, 1891, insuring their household and kitchen furniture, carpets, beds, bedding, linen, family wearing apparel, plated ware, etc., against loss or damage by fire for the period of one year, in the sum of $600. It is alleged in the complaint, among other things, that on the 11th of May, 1891, the property owned by them covered by the policy was destroyed by fire; that appellees had duly performed all the conditions of the contract on their part; that immediately after the fire occurred said appellees notified appellant of said fire, and the loss occasioned thereby, and that the appellant then and there viewed the ruins occasioned by said fire, and that appellees then and there exhibited to appellant an itemized statement of the articles lost by said fire, and the value of the same, and that the appellant then and there notified appellees they need make no further proof of their loss, as said proof was sufficient, and said appellant then and there and thereby waived all further proof of loss therein, and appellees for said reason did not make proof in writing under oath of said loss to appellant until the ----- day of August, 1891, when they made the written proof of said loss to said appellant. An itemized statement, containing a description and value of the property, consisting of numerous articles, covering seven pages of the transcript of the record, is incorporated in the complaint. The appellant filed a motion to require appellees to make their complaint more certain and specific in the following particulars, to wit: “To state specifically and definitely the nature and contents of the statements or ‘proofs of loss' made by plaintiffs and delivered to defendant. Second. To state specifically the kind of ‘wearing apparel’ embraced in that item.” This motion being overruled, appellant excepted, and thereupon filed a motion to require appellees “to paragraph their complaint so that there will be as many paragraphs as there are causes of action stated in the complaint;” which motion was also overruled, and exception reserved. Appellant then moved the court to strike out all that part of the complaint in relation to the making of the “written proof of said loss to said defendant,” and this motion was overruled, and exception saved. Appellant thereupon demurred to the complaint for want of facts, and the demurrer was overruled, and appellant excepted. Appellant then filed its answer in four paragraphs: (1) General denial; (2) alleging that plaintiffs obtained other insurance upon the same property without consent of defendant; (3) transfer by James Sisk of his interest in the insured property to his coplaintiff; (4) fraud in obtaining the policy. Plaintiffs filed a demurrer to the second, third, and fourth paragraphs of the answer, which was overruled, and thereupon they filed a reply of denial. The cause was tried, resulting in a verdict against defendant. A motion for a new trial was filed, which was overruled. The errors assigned are: (1) The circuit court erred in overruling appellant's motion to require the appellees to make their complaint more certain and specific; (2) the circuit court erred in overruling appellant's motion to require appellees to paragraph their complaint; (3) the circuit court erred in overruling the motion of appellant to strike out certain parts of the complaint of appellees; (4) the circuit court erred in overruling appellant's demurrer to the complaint of appellees; (5) the circuit court erred in overruling the appellant's motion for a new trial.

The first error discussed brings in review the action of the trial court in overruling the motion of appellant to require the appellees to make their complaint more certain and specific. The motion contains two specifications; one in relation to the nature and contents of the “proofs of loss,” and the other as to the kind of “wearing apparel.” It is insisted that the allegation in respect to the “proofs of loss” is a mere conclusion, and that the item “wearing apparel” is too uncertain and indefinite. The defendant in such case as this is undoubtedly entitled to a reasonably full, clear, definite, and specific statement in the complaint of the cause of action relied upon, and also such description of the property burned, and the appropriate remedy for uncertainty in the allegations in these respects is by motion to make more specific. Pennsylvania Co. v. Dean, 92 Ind. 459;Hawley v. Williams, 90 Ind. 160; Railroad Co. v. Chester, 57 Ind. 297. When a motion to make a complaint more specific and definite in some material respect is overruled, such ruling is erroneous, but, notwithstanding it may appear that it would have been proper to sustain such motion, a wrong ruling thereon does not constitute prejudicial error if no substantial injury arises from overruling it. Alleman v. Wheeler, 101 Ind. 141; Elliott, App. Proc. § 665.

In considering the first specification in the motion, it should be borne in mind the policy provides that in case of fire immediate notice thereof shall be given the company, and within 60 days after the fire the insured shall render a statement to the company, signed and sworn to, containing, among other things, a description of the property, together with the cash value of each item thereof, etc. The giving of the notice and furnishing proof of loss within the time fixed by the contract were made conditions precedent to the company's liability, and it was incumbent on the insured to aver in the complaint a substantial performance of such conditions, or sufficient legal excuse for their nonperformance. Insurance Co. v. Pickel, 3 Ind. App. 332, and authorities there cited. In this case, the complaint contains the general averment, as we have before observed, that appellees have performed all the conditions of the contract on their part, which, under the decisions of the supreme court in this state, is sufficient without any allegations in relation to “proofs of loss.” Insurance Co. v. Capehart, 108 Ind. 270, 8 N. E. 285;Insurance Co. v. Pickel, 119 Ind. 155, 21 N. E. 546;Commerical Union Assur. Co. v. State, 113 Ind. 331, 15 N. E. 518. Without reference to whether this general allegation was sufficient to withstand a motion to make more specific in respect to the nature and contents of the proofs of loss, the waiver of the proofs of loss by the company within 60 days after the fire, as alleged in the complaint, was a sufficient legal excuse for not furnishing such proofs, as required by the terms of the policy. Insurance Co. v. Pickel, supra. The policy specifically and definitely prescribes the nature and contents of the statements and information necessary to constitute the proofs of loss. The failure to make such proofs, unless waived, would, as we have stated, under the terms of the policy, have been fatal to appellees' right of recovery. Whether, notwithstanding the generalaverment of performance of all the conditions of the contract on their part, the appellees, in the absence of the waiver alleged, could have been required, on proper motion, to make their complaint more specific by stating the nature and contents of the proofs of loss we need not determine, for the reason that in view of the waiver of such proofs, as alleged in the complaint, the averment in relation to furnishing the proofs of loss afterwards may be treated as surplusage and immaterial, and it is not therefore error to overrule a motion to make an unnecessary and immaterial averment more specific. Counsel for appellant insist that they had the right to demand a description of the kind of apparel the appellees claim was lost in the item designated as “wearing apparel” in the description of the property embraced in the statement incorporated in the complaint. The contention is that the term must apply to some kind of dress to be worn upon the person,-some kind of garment,-and that appellant was entitled to know the kind of apparel referred to in that item. The itemized statement of the description and value of the property embraced numerous items, covering, as we have seen, seven pages. In the brief, counsel have not directed our attention to the line or page of the transcript where the item in question can be found. The item “wearing apparel” we have no doubt is among the 200 other items contained in the complaint, but whether the amount thereof is placed at $1 or $50 we are not advised by any statement in the briefs or reference to the record. A casual glance over the pages of the transcript shows that the items vary from “one soap dish, 25 cents,” to “one range, $150.” The value of the “wearing apparel” may be merely nominal. Rule 25 provides that briefs “shall refer by page and line to the transcript whenever necessary to a full understanding of the questions discussed.” The decisions of the supreme court are in harmony with this rule. City of Anderson v. Neal, 88 Ind. 317;Railway Co. v. Donnegan, 111 Ind. 179, 12 N. E. 153; Elliott, App. Proc. § 440. Moreover, we have carefully read the evidence in the case, and have not noticed any reference therein to “wearing apparel,” and our attention has not been called to any such item. We observe that the testimony of one of the witnesses is not set out in full in the bill of exceptions, which purports to contain all the evidence given on the trial, but it appears the witness did testify to the articles damaged by the fire, and that instead of inserting and setting out the testimony of the witness...