Franklin Fire Ins. Co. v. Noll

• Citation: 58 N.E.2d 947,115 Ind.App. 289
• Decision Date: 29 January 1945
• Docket Number: No. 17246.,17246.
• Parties: FRANKLIN FIRE INS. CO. v. NOLL et al.
• Court: Court of Appeals of Indiana

115 Ind.App. 289
58 N.E.2d 947

FRANKLIN FIRE INS. CO.
v.
NOLL et al.

No. 17246.

Appellate Court of Indiana, in Banc.

Jan. 29, 1945.

Appeal from Superior Court, Allen County; Edward W. Meyers, Judge.

Action by the Franklin Fire Insurance Company against Laura E. Noll and William F. Noll, trustee, to recover in subrogation the amount which plaintiff had paid to one of its insured as damages for destruction of a stock of ladies' apparel and other personal property caused by water. Judgment for defendants, and plaintiff appeals.

Affirmed.

[58 N.E.2d 948]

Ramon S. Perry, of Fort Wayne, for appellant.

Barrett, Barrett & McNagny, Otto E. Grant Jr., and Leigh L. Hunt, all of Fort Wayne, for appellees.

HAMILTON, Judge.

This action was instituted by the appellant, Franklin Fire Insurance Company, against the appellees, as the owners and landlord of a certain building to recover is subrogation the amount which the appellant had paid to one of its insured as damages for the destruction of a stock of ladies' apparel and other personal property, caused by water on April 29, 1941.

The complaint alleged in substance the following facts: That the plaintiff is a corporation duly authorized to do business in the State of Indiana and is and was doing business as a fire insurance company; that prior to April 29, 1941, the plaintiff issued a policy of insurance to Nobb's Fashions, Inc., doing business as Nobbson's, covering mercantile stock held for purposes of sale in the premises occupied by the insured at 928 South Calhoun Street, Fort Wayne, Allen County, Indiana, against the hazards of fire and water damage, said policy of insurance being in the principal sum of $5000; that said policy of insurance was in full force and effect on April 29, 1941. It is further averred that the plaintiff's assured, said Nobb's Fashions, Inc., leased the premises at 928 South Calhoun Street, Fort Wayne, Indiana, from the defendants, under and by virtue of a certain written lease, a copy of which said lease is filed with and made a part of the complaint and marked ‘Exhibit A’; that said leased premises covered a certain street floor room and the basement room thereunder; that on April 29, 1941, water was discovered leaking from the upper floors of the building, in which the leased premises were located, through the ceiling and walls and into the room occupied by the plaintiff's insured; that the stock of goods in the insured's room covered by said policy of insurance was damaged to the amount of $2,655.13 by said water, which said amount the plaintiff was obligated to and did pay to its said insured, and by reason of said payment said plaintiff became subrogated to all rights, claims, demands, and interests of its insured, Nobb's Fashions, Inc., doing business as Nobbson's, to the amount and extent of such payment.

The complaint then charges that said loss and damage to said stock of wearing apparel, goods, and merchandise was caused by the negligence of the defendants, appellees herein, in each of the following particulars, to wit:

‘5. Plaintiff further avers that the defendants and each of them had carelessly and negligently permitted their plumbing in the said Noll Building to become in a bad state of repair, in that the pipe or pipes in the upper floors had begun to leack, thus allowing great quantities of water of flow through the building and into the premises occupied by the plaintiff's said insured.

‘6. Plaintiff further avers that the defendants and each of them were careless and negligent in that they failed to properly inspect and check the said plumbing pipe and equipment, and because of said carelessness and negligence, the said plumbing pipe and equipment had become defective and worn out and permitted water to escape from said pipe and to run over onto and into the premises occupied by the said plaintiff's insured.

‘7. Plaintiff further avers that the defendants and each of them were further careless and negligent in that an ordinary prudent person could have known and should have known in the operation and maintenance of their said building, that the pipes and plumbing equipment were defective, but that defendants failed to use ordinary care which an ordinary prudent person would...