Baker v. German Fire Ins. Co.

• Decision Date: 26 June 1890
• Citation: 124 Ind. 490,24 N.E. 1041
• Parties: Baker et al. v. German Fire Ins. Co.
• Court: Indiana Supreme Court

124 Ind. 490

24 N.E. 1041

Baker et al.

v.German Fire Ins. Co.

Supreme Court of Indiana.

June 26, 1890.

Appeal from superior court, Marion county; N. B. Taylor, Judge.

F. Winter and R. Hill, for appellant. Finch & Finch and Vinson Carter, for appellee.

Mitchell, J.

The policy of insurance upon which this action was predicated contained a stipulation to the effect that, in case of damage by fire, the assured should forth with give notice to the company, and as soon thereafter as possible render a particular account of the loss under oath. It was averred in the first paragraph of the complaint that the plaintiffs had performed all the terms and conditions of the policy to be performed by them on their part. It also appeared by the averments of the same paragraph that the loss occurred on the 24th day of August, 1884, and that the particular proof thereof, as required by the policy, was not furnished until December 18, 1884, a period of three months and nineteen days after the fire. From the well-established principle that specific allegations of fact in a pleading control general averments, it must follow that the general averment that the plaintiffs had performed all the terms and conditions of the policy to be performed by them must be construed in connection with the specific allegations contained in the complaint upon the subject of proof of loss. The requirement that particular proof of loss should be made under oath, as soon as possible, imposed upon the insured the duty of making such proof within a reasonable time, and without unnecessary delay. Insurance Co. v. Baum, 29 Ind. 236;Railway, etc., Co. v. Burwell, 44 Ind. 460; Wood, Ins. § 414. Where there is no dispute as to the facts whether the requirements of the policy as to time have been complied with is a question of law for the court. Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. Rep. 315; Wood, Ins. § 412. An unexplained delay such as is shown by the complaint to have occurred in the present case is unreasonable, and is not a compliance with the condition of the policy. Trask v. Insurance Co., 29 Pa. St. 198; Insurance Co. v. Lindsey, 26 Ohio St. 348;Patrick v. Insurance Co., 43 N. H. 621;Mellen v. Insurance Co., 17 N. Y. 609. In a complaint to recover upon a policy of fire insurance it must affirmatively appear that all conditions precedent to a right of recovery have been complied with by the insured, or an excuse for non-performance or a waiver of such conditions must appear, in order that the complaint may be held sufficient. The court committed no error in sustaining the demurrer to the first paragraph of the complaint.

The ruling of the court in holding the acts averred in the second paragraph of answer sufficient to constitute a defense is complained of. It was stated in the written part of the policy exhibited with the complaint that the building insured was “occupied as a hotel, with bar and billiard room attached,” and the policy contained a printed stipulation to the effect that any false representation or concealment concerning the use or occupation of the property should avoid the contract. It was averred in the answer that the assured represented that the building mentioned in the policy was used as a hotel at the time the contract was made, and that particular inquiry was made of the assured in respect to certain newspaper reports, of disreputable dances and gatherings theretofore permitted in the vicinity of the building, and that the plaintiff represented that the dances and gatherings referred to had not been held in the building to which the insurance under negotiation applied. It is then averred that the building was not used as a hotel at the time the policy was issued, but that it was used by one Selking as a saloon, and that the disreputable dances and gatherings referred to in the newspaper reports particularly inquired of, were had in the building insured. The...