Baker v. German Fire Insurance Company
| Decision Date | 26 June 1890 |
| Docket Number | 14,158 |
| Citation | 24 N.E. 1041,124 Ind. 490 |
| Parties | Baker et al. v. The German Fire Insurance Company |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
The judgment is affirmed, with costs.
F Winter and R. Hill, for appellants.
V Carter, F. M. Finch and J. A. Finch, for appellee.
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 12th, 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. Provident L. Ins. Co. v Baum, 29 Ind. 236; Railway, etc., Co. v Burwell, 44 Ind. 460; Wood Fire Ins., section 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., etc., v. Brim, 111 Ind. 281, 12 N.E. 315; Wood Fire Ins., section 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. State, etc., Ins. Co., 29 Pa. 198; Home Ins. Co. v. Lindsey, 26 Ohio St. 348; Patrick v. Farmers' Ins. Co., 43 N.H. 621; Mellen v. Hamilton F. Ins. 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 facts averred in the second paragraph of answer sufficient to constitute a defence 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 statement that the building insured was "occupied as a hotel, with bar and billiard-room attached," inserted in the face of the policy, constituted an express warranty that the building was so occupied at the time the policy was issued, and the validity of the contract depended upon the truth of the stipulation....
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- Baker v. German Fire Ins. Co.