Commercial Union Assur. Co. v. Schumaker

• Decision Date: 14 May 1918
• Docket Number: No. 9510.,9510.
• Citation: 71 Ind.App. 526,119 N.E. 532
• Parties: COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON, ENGLAND, v. SCHUMAKER.
• Court: Indiana Appellate Court

71 Ind.App. 526

119 N.E. 532

COMMERCIAL UNION ASSUR. CO., LIMITED, OF LONDON, ENGLAND,

v.SCHUMAKER.

No. 9510.

Appellate Court of Indiana, Division No. 1.

May 14, 1918.

Appeal from Circuit Court, Warrick County; Union W. Youngblood, Judge.

Action by Samuel Schumaker against the Commercial Union Assurance Company, Limited, of London, England. From a judgment for plaintiff and an order overruling a motion for a new trial, defendant appeals. Reversed, with instructions.Burke G. Slaymaker, of Indianapolis (Kiper & Fulling, of Boonville, of counsel), for appellant. Arch Stevenson of Rockport, and John R. Brill, Frank H. Hatfield, and John W. Brady, all of Evansville, for appellee.

BATMAN, P. J.

This is an action by appellee against appellant to recover damages to an automobile, under a policy of fire insurance. The complaint is in a single paragraph, and alleges, among other things: That defendant is a corporation, duly organized under and pursuant to the laws of the state of New York, the laws of the state of Illinois, and the laws of London, England; that defendant is engaged in insuring against loss by fire; that by its policy, dated August 6, 1912, defendant, in consideration of $24 paid by plaintiff, insured plaintiff against loss or damage by fire to the amount of $1,200 on one Pullman automobile, factory No. 4242, touring car type, gasoline motive power, four cylinders, 40 horse power, model 1910, by which policy defendant agreed to indemnify plaintiff against any loss or damage, not exceeding $1,200, that should happen by fire to said property during one year from the date of said policy; that a copy of said policy, marked Exhibit A, was filed with the complaint and made a part thereof; that on July 28, 1913, while said policy was in effect, said automobile was destroyed by fire; that said loss was insured against by said policy; that plaintiff at all times owned the insured property, which was of the value of $1,500; that he has fulfilled and performed all conditions to be by him performed under the terms of said policy; that defendant, upon demand by plaintiff, failed and refused to join plaintiff in making proof, ascertainment, or estimate of said loss, and refused to pay anything; and that plaintiff has been damaged in the sum of $1,500. The policy, which is made a part of the complaint by exhibit, is not set out in this opinion, because of its length, but reference will be made later to such portions as may become material in determining the questions presented. Appellant filed a demurrer to the complaint upon the grounds that the court had no jurisdictionof the action, and that the complaint does not state facts sufficient to constitute a cause of action. With such demurrer appellant filed a memorandum which directed the court's attention to the questions hereinafter determined with reference to such complaint. This demurrer was overruled, and appellant then filed an answer in five paragraphs; the first being a general denial. No demurrer was addressed to any of such paragraphs of answer. Appellee filed a reply in five paragraphs; the first being a general denial. Appellant filed a demurrer to each of said paragraphs of reply except the first, with a sufficient memorandum to require a consideration of the questions hereinafter determined with reference thereto. This demurrer was overruled as to each of said paragraphs, and appellant duly excepted. The cause was submitted to a jury for trial, and a verdict was returned in favor of appellee for $900, on which judgment was accordingly rendered. Appellant filed a motion for a new trial, which was overruled. It now prosecutes this appeal, and has assigned as errors the overruling of its demurrer to the complaint, the overruling of its demurrer to the several paragraphs of reply, and the overruling of its motion for a new trial.

[1] Appellant filed its original brief in due time, but appellee failed to file a brief within the time required by the rules. Appellant thereafter filed a motion for an order requiring appellee to return the transcript in this cause to the office of the clerk of this court, and for a reversal of the judgment because of appellee's failure to file a brief. The determination of this motion was postponed until the final hearing. Appellee seeks to justify such failure on the ground that appellant had not made any argument on the propositions and points stated in its brief. He contends that such omission rendered such brief incomplete, and constituted a waiver of any alleged error. We cannot concur in this contention. Rule No. 24 (55 N. E. vi) provides that:

“The briefs of any party may be followed by an argument in support of such briefs, which shall be distinct therefrom, but shall be bound with the same.”

In accord with this rule, it has been held that an argument is not a necessary part of a brief. Moore v. Ohl (1917) 116 N. E. 9. However, the failure of appellee to file a brief within the time provided by the rules does not compel a reversal of the judgment. Such failure only calls for an exercise of the discretionary power of the court, which, it has been held, should not be exercised against the judgment of the trial court, except in cases where the appellant's brief shows that reversible error was, in fact, committed by such court. Simon v. City of Wabash (1914) 58 Ind. App. 127, 107 N. E. 738;McClure v. Anderson (1914) 58 Ind. App. 615, 108 N. E. 757. Subsequent to the filing of this motion by appellant appellee on petition was granted leave to file his brief. Such brief was filed within the time given. Under the facts and circumstances of this case we believe such motion should be overruled, which is now accordingly done.

[2][3] Appellant's first assignment of error challenges the action of the court in overruling its demurrer to the complaint. It is contended that the complaint alleges that the policy in suit was executed by three separate and distinct corporations, and therefore the identity of appellant with the corporation executing the policy is not shown. This contention is based on the allegation “that said defendant is a corporation duly organized under and pursuant to the laws of the state of New York, the laws of the state of Illinois, and the laws of London, England.” This allegation does not support appellant's contention. Only one corporation is sued, although it is alleged that it was organized under and pursuant to the laws of three separate jurisdictions. This allegation is a mere matter of description, and is controlled by the policy which is filed with the complaint as an exhibit. Globe, etc., Co., v. Reid (1897) 19 Ind. App. 203, 47 N. E. 947, 49 N. E. 291;First National Bank v. Josefoff (1914) 57 Ind. App. 320, 105 N. E. 175;Stewart v. Knight & Jillson Co. (1905) 166 Ind. 498, 76 N. E. 743;Huber Mfg. Co. v. Wagner (1906) 167 Ind. 98, 78 N. E. 329;Simons v. Kosciusko, etc., Ass'n (1913) 180 Ind. 335, 103 N. E. 2. The policy itself purports to have been issued by the “Commercial Union Assurance Company of London, England.” This company is named as defendant in the caption of the complaint, and as appellant appeared thereto and answered, without denying the execution of the contract, it is bound by the judgment rendered.

[4] It is further contended that there is no allegations in the complaint that the claim sued on has matured or become due, or that it is unpaid; that such allegations are essential to the sufficiency of the complaint, and hence the court erred in overruling the demurrer thereto. The policy in suit contains the following provision relating to the maturity of any claim for loss thereunder:

“And the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required, have been received by the company, including an award by appraisers, when appraisal has been required.”

The complaint alleges the issuance of the policy, a loss by fire thereunder, and that due notice and proof thereof had been given and made. It does not allege that the amount of the loss had been ascertained by an appraisal, but does allege:

“That said defendant, upon demand by this plaintiff, failed and refused to join this plaintiff in making said proof, ascertainment, or estimate of loss, and refused to pay anything on account thereof.”

This is, in effect, a charge that appellant had waived its right to an appraisal. Providence Washington Ins. Co. v. Wolf (1907) 168 Ind. 690, 80 N. E. 26, 120 Am. St. Rep. 395. Where there has been proper proof of loss and a waiver of an appraisal, the claim is then due. There is a sufficient allegation that the claim is unpaid. We conclude that the court did not err in overruling the demurrer to the complaint.

[5][6] Appellant predicates error on the action of the court in overruling its demurrer to the second paragraph of reply. This paragraph of reply is addressed to the third and fifth paragraphs of answer. Said paragraphs of answer are based on the following provisions of said policy:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof. *** If an application, survey, plan or description of property be referred to in this policy, it shall be a part of this contract, and a warranty by the insured.”

It is alleged that appellee made certain representations with reference to the horse power, catalogue price of said automobile, the amount paid by appellee therefor, and whether it was new or secondhand when purchased by him; that these representations were embodied in said policy; that the same were false, and known by appellee to be false when made; that appellant did not know they were false, and relied thereon in issuing such policy. Said second paragraph of reply is based on a waiver of said false representations. It alleges that the agents of appellant through...