Farmers Mutual Fire Insurance Company of Dekalb County v. Jackman

• Decision Date: 08 March 1905
• Docket Number: 4,991
• Parties: FARMERS MUTUAL FIRE INSURANCE COMPANY OF DEKALB COUNTY v. JACKMAN
• Court: Indiana Appellate Court

73 N.E. 730

35 Ind.App. 1

FARMERS MUTUAL FIRE INSURANCE COMPANY OF DEKALB COUNTY v. JACKMAN

No. 4,991

Court of Appeals of Indiana

March 8, 1905

From DeKalb Circuit Court; W. M. Brown, Special Judge.

Action by Sarah Jackman against the Farmers Mutual Fire Insurance Company of DeKalb County. From a judgment for plaintiff defendant appeals.

Affirmed.

P. V Hoffman and C. S. Smith, for appellant.

F. M Powers and Cyrus Cline, for appellee.

OPINION

MYERS, J.

This was an action instituted in the DeKalb Circuit Court on the 29th day of July, 1902, to coerce payment of $ 400 on account of a policy of fire insurance issued by appellant to appellee on a certain dwelling-house situated on certain real estate in DeKalb county, Indiana, appellee owning only a life estate therein. The dwelling was totally destroyed by fire March 22, 1902.

The complaint was in three paragraphs. The first paragraph was dismissed. Briefly stated, the second paragraph avers that appellant is a corporation duly organized under the laws of the State of Indiana, with its principal office in DeKalb county, Indiana; that on April 3, 1880, appellee was the owner of sixty acres of real estate in said county, with a dwelling-house thereon occupied by her as a dwelling; that on said date appellant, under the name of the Farmers Mutual Fire Insurance Company of DeKalb County, Indiana, insured the appellee against loss or damage by fire or lightning to the following property, to wit: Dwelling on said land, $ 600; and specifically naming certain amounts of insurance on other specified property; that appellee paid a fee of $ 1 and a per cent. of $ 2, and received from appellant a policy--No. 192--signed by its president and secretary; that, by the terms of the policy and articles of association of appellant, appellee, by due observance of the by-laws, became a continuing member of said corporation; that on August 10, 1899, appellee sold said land to one Cyrus B. Jackman for the nominal sum of $ 2,000, and the further consideration reserved to appellee and her husband of a life estate in said lands, with the exclusive possession of same and buildings thereon, and the profits thereof; that upon the sale of said land she immediately informed the secretary of appellant that she had sold the land and under what terms and conditions, and sought his advice as to the necessity of having the policy assigned to her grantee; that she desired to make any necessary change in the policy to keep it in "full force and validity;" that said secretary "informed her that no assignment of the policy was necessary, and that no change of any nature was necessary to maintain the policy; that, under her life interest in the lands, she had a right to take out a policy on the buildings and on the contents, and the exclusive use of the buildings and the ownership of the contents, and that if there was any loss, if she was a member in good standing by having paid all assessments to the company, the loss would be paid to her;" "that she relied upon the statement of the secretary so made to her, and returned home without making any change, and continued to pay all assessments made against her by said" appellant; that on August 23, 1900, appellant came to her home and readjusted her insurance, and issued a new policy, No. 1,496; "that she was occupying said property at that time under said life tenancy, and living in the dwelling on said land, the same being the dwelling insured by" appellant; that, under the new policy, $ 400 was placed on the dwelling, and the policy duly signed by the president and secretary of appellant; that at the time of the readjustment of said insurance and the issuing of the new policy, she informed the appellant as to her rights in the land, and that it was her desire to have the policy so issued that it would be maintained in full force and effect; that she was the owner of the personal property, and held a life estate in the land, with the exclusive possession thereof; that she was again informed by the company that it was only necessary for her to keep up her assessments, and that if a loss occurred the insurance would be paid to her; that she relied upon the statements made by appellant, accepted the policy in her own name, has ever since promptly paid all assessments made against her by appellant, which assessments were received and accepted by appellant; that she has fully performed all of the conditions on her part to be performed under the terms and conditions of said policy of insurance and the by-laws of said appellant; that on March 22, 1902, said dwelling was destroyed by fire, without any fault or negligence on her part; that she was occupying said property as a dwelling at the time of its destruction; that, within ten days after the destruction of said dwelling, proofs of loss were duly made; that since the 3d day of April, 1880, until its destruction, appellee has continuously had the exclusive possession of said dwelling and occupied it as such, and that the insurance on said dwelling is due and unpaid. Judgment for $ 500 is demanded.

A copy of policy No. 192 is made an exhibit with this paragraph, and a copy of policy No. 1,496 is also made an exhibit. That part of the policy upon which this action is based, necessary for the decision of this case, is as follows: "By this policy of insurance be it known that Sarah Jackman, resident of DeKalb county, State of Indiana, has this day of continued membership become a member of the Farmers Mutual Fire Insurance Company of DeKalb County, according to the rules and regulations and articles of association; and is insured in said company against loss or damage from fire or lightning on the following described property, situated in Franklin township. Dwelling-house No. 1, addition A [particularly describing the material in the foundation, building, roof, size of building, height, year built, etc.], $ 400." Other classes of property with insurance thereon are mentioned and described in the policy. On the back of the policy is found the following: "Articles of association and rules and regulations of the Farmers Mutual Fire Insurance Company of DeKalb County, Indiana. We, the farmers and citizens of DeKalb county, State of Indiana, feeling the need of a reliable home insurance association and believing that such an association may be formed among the farmers and citizens of said State and county with a less rate of insurance than they are now having, and whereas, we believe a mutual association is the true method for farmers and citizens to adopt in insurance, therefore, we, the undersigned citizens of said county, do hereby agree to associate together for the purpose of insuring our property, by virtue of section one of an act of the legislature of this State, approved March 14, 1877. An act for the association of farmers and citizens for the purpose of insuring their property against loss by fire under such rules and regulations as they may adopt therefor, to all whom it may concern: Be it known that we, Perry Fitch, William Cornell and others undersigned, residents of the county of DeKalb, State of Indiana, and citizens of said State, now, in pursuance of an act of the legislature of said State entitled: 'An act to enable farmers and citizens of any county in the State of Indiana to form voluntary associations for the purpose of insuring their property, against loss by fire,' approved March 14, 1877, do hereby associate together and form an association for the purpose of making insurance against loss by fire and lightning, on personal property, dwelling-houses, barns and other buildings, except those hereinafter mentioned. And we declare this instrument to be the rules and regulations of the association, by which it shall be governed in all respects, subject to the Constitution and laws of this State. The members of this company shall be all those who sign these articles and all of those who may hereafter hold a policy in force in this company. Rules and Regulations. Section 1. This association shall be known as The Farmers Mutual Fire Insurance Company of DeKalb County, post-office address, Auburn, Indiana."

Next follow sections providing the duties of the various officers, the manner of electing directors, the terms of directors and duties of agents, etc. Section nineteen provides that "No other form of application shall be used but the ones prescribed by the board, said application form shall set forth by schedule the property to be insured, its construction, size, year built, location, amount of insurance, and its present cash value, together with the articles, rules and regulations of said association. Said application shall make part of the contract for insurance, and the same shall be considered a warranty of the truth of all the facts stated therein and shall be placed on file in the office of the secretary."

Section twenty-eight provides that "Any person before becoming a member of the association shall pay to the soliciting agent $ 1 policy fee, together with ten cents on each $ 100 insured. He must also subscribe his name to a copy of the articles of this association, and comply with and observe the by-laws rules and regulations of this association. No other form of application shall be used but the one prescribed by the board. It shall set forth, by schedule, the property to be insured, its locality, and post office of owner, and shall contain the rules and regulations of the association. It shall make part of the contract of the insurance and be considered a warranty of the truth of all the facts stated therein. Provided, that any policy issued on such application to any person or persons, who do not own the same in fee simple shall be null and void. And this association shall not be...