Cont'l Ins. Co. v. Bair

• Decision Date: 05 January 1917
• Docket Number: No. 8983.,8983.
• Citation: 65 Ind.App. 502,114 N.E. 763
• Parties: CONTINENTAL INS. CO. v. BAIR et al.
• Court: Indiana Appellate Court

65 Ind.App. 502

114 N.E. 763

CONTINENTAL INS. CO.

v.BAIR et al.^*

No. 8983.

Appellate Court of Indiana.

Jan. 5, 1917.

Appeal from Circuit Court, Tipton County; James M. Purvis, Judge.

Suit by Lytel Bair and others against the Continental Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.Burke G. Slaymaker, of Indianapolis, for appellant. Alfred Ellison, of Anderson, for appellees.

FELT, C. J.

This is a suit by appellees, Lytel Bair and others, against appellant, Continental Insurance Company, to recover on a policy of fire insurance. The other appellees are alleged to hold liens on the property covered by the policy. From a judgment in appellee's favor for $600, appellant has appealed, and assigned as error: (1) The overruling of its demurrer to the complaint; (2) the sustaining of the separate demurrer to the eighth and ninth paragraphs of appellant's answer to the complaint; (3) the overruling of the demurrer of appellant to the second paragraph of reply of appellees to each of the fourth, fifth, and sixth paragraphs of appellant's answer; (4) overruling the motion of appellant for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict; (5) overruling the motion for a new trial; and also (6) in arrest of judgment.

[1] The second, third, and sixth assignments are waived by the failure of appellant to present any points or propositions relating thereto.

The complaint, in substance, alleges that on January 3, 1913, Lytel Bair owned a frame dwelling in Summittville, Ind., and on that day for a cash premium of $7.50 appellant insured the same for $600 for three years from that date. That appellee duly performed all the conditions of the policy of insurance so issued to him, and on the night of August 29, 1913, said building was totally destroyed by fire. That at the time of the fire the building was owned by said Bair and was of the value of $700, and his loss occasioned by the fire was $700. That within four days after the fire appellee Bair notified appellant of the fire, and within fifteen days from the date of the fire appellant sent an adjuster to Summittville, who investigated and inspected the loss. That on October 7, 1913, appellee Lytel Bair furnished appellant due proof of the loss of said building. That on January 27, 1913, said appellee by a single mortgage incumbered real estate on which said building was located to secure indebtedness as follows: To George Bair, $140; Pearl McLead, $14.30; James L. Noble, $50; Summittville Bank, $100; James F. Sparks, $22.07; Alfred Ellison, $20; William Kittinger, $25; Warner & Sons, $18.75; Vinson & Potts, $-. The appellant was duly notified of the giving of said mortgage immediately after its execution and assented thereto, and then agreed with appellee Lytel Bair to cause said policy to be made payable to said mortgagees as their interests might appear. That appellant failed to make the necessary indorsement on the policy. That the appellees other than Lytel Bair join in the action that their interest in said policy may be protected by the court. That each has an interest therein to the amount of the respective claims above set out. That there is due on said policy the sum of $600, and no part of same has been paid by appellant. Prayer for judgment for $700.

The policy was made a part of the complaint by exhibit, and, among other terms, provided that:

If the property “be or become mortgaged or incumbered, or if the interest of the assured be other than unconditional or sole ownership, or if the policy be assigned, or if the risk be increased by any means within the knowledge of the assured, then in each and every one of the above cases this entire policy shall be null and void unless otherwise provided by agreement indorsed herein.”

“No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be subject to agreement indorsed hereon or added hereto and as to such provision and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provision or condition unless such waiver, if any, shall be written upon or attached hereto.”

The policy further provided that in case of loss the assured should within 15 days give notice in writing to the company, and within 60 days after loss should render a statement to the company, signed and sworn to by the assured, “stating the interest of the assured and all others in the property, the cash value of each item and the amount of loss thereon, all other insurance, whether valid or not, covering any part of said property, and shall furnish an itemized statement of loss and damage to any building described in the policy. ***” The policy further stipulated that to secure mortgages, if desired, the policy should be made payable on its face to such mortgagee, as follows: “Loss, if any, payable to John Doe, mortgagee.”

The memoranda accompanying the demurrer states that the complaint does not show that the plaintiffs other than Lytel Bair have any interest in the insurance contract and that a joint action cannot be maintained; that none of the plaintiffs are shown to have an insurable interest in the property covered by the policy; that it is not shown that any amount is due any of the plaintiffs on the policy; that it does not appear that any of the plaintiffs have furnished the proof of loss required by the policy and by the laws of the state; that it affirmatively appears that Lytel Bair has himself breached the contract sued upon.

[2] Under our Code, all who join as plaintiffs must have an interest in the subject of the action and be united in such interest; but their interests need not be equal, and may be severable, provided all have some common interest in the subject-matter of the suit and each is interested in seeing that all who join as plaintiffs obtain relief in respect to such subject-matter.

This rule has been specifically applied in cases involving loss by fire where the owner of the property insured and the holder of incumbrance thereon joined in a suit upon the policy against the insurance company, it appearing that the total loss exceeded the amount of the incumbrance. Sections 251-263, Burns 1914; Home Ins. Co. v. Gilman, 112 Ind. 7-9, 13 N. E. 118;Franklin Ins. Co. v. Wolff, 23 Ind. App. 549-551, 54 N. E. 772;Troxel v. Thomas, 155 Ind. 519-522, 58 N. E. 725;Judy v. Jester, 53 Ind. App. 74-85, 100 N. E. 15.

It is contended by appellant that the complaint shows upon its face a breach of the insurance contract by the execution of the mortgage by appellee Lytel Bair to his co-appellees, and that the averments which show a request to have the policy made payable to the mortgagees as their interest may appear, and the failure of appellant to comply with such request, fall short of showing any right of action in appellees; that, if there is any liability, before a recovery can be had there must be a reformation of the contract to make the policy payable to the mortgagees as their interests may appear; that the terms of the policy require the interest of the mortgagees to be shown upon the policy itself.

[3] Where the facts pleaded show a cause of action and also a defense thereto, the complaint is insufficient unless it also contain other averments which avoid such defense. Mallow v. Eastes, 179 Ind. 267, 270, 100 N. E. 836;Johnson v. Harrison, 177 Ind. 240-248, 97 N. E. 930, 39 L. R. A. (N. S.) 1207.

The averments which show the execution of the mortgage and the failure to have the interest of the mortgagees shown upon the policy defeat any recovery thereon, unless avoided by the averments which show notice to appellant of the execution of the mortgage, its assent and its agreement to have the policy made payable to the mortgagees as their interests appear, without actually so indorsing the policy.

[4] The averments are sufficient to show notice to appellant of the execution of the mortgage and an agreement with appellee Lytel Bair to properly indorse the interests of the mortgagees upon the policy, and a failure to comply with such agreement.

Under our Code (Burns' Ann. St. 1914, § 249) we have but “one form of action for the enforcement or protection of private rights and the redress of private wrongs.” Equitable principles may be invoked to relieve against a wrong where the facts are sufficient to warrant the application of such principles. The averments of the complaint show that appellee Bair did everything necessary on his part to have the policy made payable to the mortgagees as their interests should appear, and that appellant agreed to so indorse the policy and failed to carry out its agreement. The failure to have the interests of the mortgagees duly indorsed on the policy was, under the averments, due to the fault of appellant. In such situation, the principle may be invoked that equity regards that as done which in good conscience ought to have been done. Sourwine v. Supreme Lodge K. of P., 12 Ind. App. 447-451, 40 N. E. 646, 54 Am. St. Rep. 532;Modern Bro. of America v. Matkovitch, 56 Ind. App. 8-15, 104 N. E. 795, and cases cited; Isgrigg v. Schooley, 125 Ind. 94-99, 25 N. E. 151;Kentucky Mutual Ins. Co. v. Jenks, 5 Ind. 96-104;Stewart v. Gwynn, 41 Ind. App. 320-325, 82 N. E. 1000, 83 N. E. 753;Randall v. White, 84 Ind. 509-514;German-American Fire Ins. Co. v. Sanders, 17 Ind. App. 134-138, 46 N. E. 535; Pomeroy's Equity (3d Ed.) §§ 106, 109, 111, 364, 365.

In Sourwine v. Supreme Lodge K. of P., supra, this court considered a case in which a member of the endowment rank of the K. of P. lodge complied with all of the conditions under which he was entitled to transfer to the fourth class, which paid a larger indemnity than the class from which he sought to transfer. He took this action in March, 1889, and died on May 5, 1892, without having obtained the...