Fireman's Fund Ins. Co. v. Finklestein

• Decision Date: 16 March 1905
• Docket Number: No. 20,543.,20,543.
• Citation: 164 Ind. 376,73 N.E. 814
• Parties: FIREMAN'S FUND INS. CO. v. FINKLESTEIN.
• Court: Indiana Supreme Court

164 Ind. 376

73 N.E. 814

FIREMAN'S FUND INS. CO.

v.FINKLESTEIN.

No. 20,543.

Supreme Court of Indiana.

March 16, 1905.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by Ester Finklestein against the Fireman's Fund Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337u. Affirmed.

James M. Berryhill, for appellant. Hugh D. Merrifield and Herod & Herod, for appellee.

MONKS, J.

This action was brought by appellee to recover for loss by fire of certain personal property, including household goods, wearing apparel, etc., which were insured by appellant. A trial of said cause resulted in a verdict, and, over a motion for a new trial, a judgment in favor of appellee. The errors assigned call in question the action of the court in overruling the demurrer to the complaint and the motion for a new trial.

Appellant insists that the complaint is insufficient because of the omission of each of the following allegations: (1) That proofs of loss were furnished according to the requirements of the policy; (2) a compliance by appellee with all the requirements of the policy; (3) appellee's ownership of the property destroyed by fire at the date of the policy and the time of the fire; (4) the value thereof at the time it was burned; (5) identification as an exhibit of the adjuster's agreement mentioned in the complaint as “being made a part hereof and attached hereto.”

The complaint is copied into the transcript of the proceedings of the court below, and immediately following the complaint a copy of the insurance policy and the adjuster's agreement are copied into the transcript in the order named. It is alleged in the complaint that said adjuster's agreement is “made a part hereof and attached hereto.” This was sufficient to make said agreement a part of the complaint under section 365, Burns' Ann. St. 1901 (section 362, Rev. St. 1881, and section 362, Horner's Ann. St. 1901); Thompson v. Recht, 158 Ind. 302, 63 N. E. 569. This disposes of the fifth objection.

It is expressly averred in the complaint that appellee “has fully complied with all the requirements, stipulations, agreements, and conditions on her part to be performed.” This was sufficient under our statutes (section373, Burns' Ann. St. 1901 [section 370, Rev. St. 1881, and section 362, Horner's Ann. St. 1901]; Collins v. Amiss, 159 Ind. 593, 595, 596, 65 N. E. 906, and cases cited), and disposes of the first and second objections.

It appears from the complaint by direct averments that the property described in the insurance policy issued to her by appellant was her property when the same was insured, and that “while said policy was still in force and effect, and while said property insured as aforesaid was contained in said dwelling, and was the property of plaintiff, a fire occurred in said dwelling, in which certain articles of said property belonging to plaintiff and covered by said policy of insurance were damaged to the extent of over six hundred dollars.” The averments in regard to appellee's owning the property were sufficient to withstand the demurrer for want of facts. Aurora Fire Insurance Co. v. Johnson, 46 Ind. 316, 321-323;Phœnix Insurance Co. v. Benton, 87 Ind. 132-134.

It is alleged in the complaint that immediately after the first notice of the loss was given to appellant the appellant sent its “agent and adjuster, who made investigation as to the origin of the fire and the amount of the loss and damage sustained by plaintiff by reason thereof, and thereupon this plaintiff and said defendant, through its said adjuster and agent, under the terms and provisions of said policy, entered into an ascertainment or estimate of the amount of the loss sustained by plaintiff, which amount was agreed upon by plaintiff and said defendant as being five hundred and forty-five dollars and fifty-seven cents; *** that thereafter, as was the right of said defendant under said policy, said defendant caused plaintiff to be examined under oath touching the origin and cause of said fire, the ownership of plaintiff in such goods, and was at liberty and did ask plaintiff under oath such questions as defendant thought proper and desired to ask-all of which such questions were answered by plaintiff without evasion, frankly and willingly; that the examination was taken before a notary public, reduced to writing, subscribed and sworn to by plaintiff, and is and has been in the possession of defendant for more than 60 days prior to the bringing of this action; that thereafter said defendant and this plaintiff entered into a certain agreement or stipulation under the terms of said policy concerning the estimate of damages, by which said written agreement and stipulation it was provided that it was mutually agreed between the defendant and plaintiff that the total amount of loss or damage by said fire to the property mentioned in said policy was, after a full examination, agreed and determined by compromise at the sum of $545.57, the said sum to be binding and conclusive upon said parties as to the said amount of...