Ft. Wayne Ins. Co. v. Irwin

• Decision Date: 11 October 1899
• Citation: 23 Ind.App. 53,54 N.E. 817
• Parties: FT. WAYNE INS. CO. v. IRWIN.
• Court: Indiana Appellate Court

23 Ind.App. 53

54 N.E. 817

FT. WAYNE INS. CO.

v.IRWIN.

Appellate Court of Indiana.

Oct. 11, 1899.

Appeal from circuit court, Montgomery county; Jere West, Judge.

Action by Laura Irwin against the Ft. Wayne Insurance Company on a fire insurance policy. There was a judgment for plaintiff, and defendant appeals. Reversed.Martin A. Morrison and Clifford, Browder & Moffett, for appellant. Palmer & Palmer, for appellee.

ROBINSON, J.

The appellee recovered a judgment against appellant for a fire loss. The complaint avers that appellant, the Ft. Wayne Insurance Company, of Ft. Wayne, Ind., is a “corporation duly organized under the laws of Indiana, and doing a fire insurance business in said state”; that the company has an office and an agent for the transaction of business residing in Clinton county, and upon whom process may be served. The complaint was filed in the Clinton circuit court.

The first error assigned questions the overruling of appellant's motion to set aside service of process. The amended return of the sheriff to the summons issued shows: “Served the within summons, as commanded, on the defendant, the Ft. Wayne Insurance Company, of Ft. Wayne, Indiana, on the 26th day of October, 1896, by handing said summons to John C. Morrison, agent of said defendant, residing in Clinton county, Indiana; and that said Morrison looked at the same, and advised the undersigned to send said summons to Messrs. McGillard & Dark, the general agents of the defendant, residing at Indianapolis, Indiana. Neither the president nor chief officers of the defendant corporation was found in my county.” The sheriff was directed to summon the Ft. Wayne Insurance Company, of Ft. Wayne, Ind. Section 318, Burns' Rev. St. 1894, provides that process against either a domestic or foreign corporation may be served on the president, presiding officer, chairman of the board of trustees, or other chief officer, or if its chief officer is not found in the county, then upon its cashier, treasurer, director, secretary, clerk, general or special agent. Appellant entered a special appearance, and moved to set aside the service of summons. The motion to set aside the service was properly overruled. Strictly speaking, perhaps, the summons was not served by reading or by leaving a copy at the usual and last place of residence. But the party served did receive the summons, and knew what it contained. He evidently read it, and from the direction given by him he knew the action had been brought, the partiesthereto, and the court where pending. Burns' Rev. St. 1894, §§ 316, 319.

The second, third, and tenth errors assigned question the sufficiency of the complaint. The complaint is in the usual form in such cases, and the only objection to it argued is that it fails to aver a performance of the conditions precedent contained in the policy, or show a waiver. The complaint avers that “the plaintiff has duly and fully performed all the conditions of said policy on her part to be performed.” The statute (section 373, Burns' Rev. St. 1894) provides that in pleading the performance of a condition precedent in a contract it shall be sufficient to allege, generally, that the party performed all the conditions on his part. It has been held that this section applies to insurance policies the same as to other contracts. Louisville Underwriters v. Durland, 123 Ind. 544, 24 N. E. 221. The policy is made a part of the complaint. It contains certain provisions as to how the value of the property at the time of a loss shall be ascertained or estimated. The policy also requires that proof of loss shall be made by the insured within a given time. The complaint shows this was done. We think a proper construction of the policy is that the owner shall make proof of his loss within a given time, and, if that proof is not satisfactory to the company, it may take steps to have the loss ascertained by appraisers. If the insured makes the proof of loss, required, and no objection is made to such proof within the 60 days stipulated in the policy, or the policy is not paid, so far as ascertaining the amount of loss is concerned, a right of action accrues. We do not think the complaint open to the objection urged.

Sustaining appellee's demurrer to the second and additional paragraph of answer in abatement is appellant's fourth assignment of error. Appellant filed a verified second paragraph of answer in abatement, alleging, in substance, that appellant is a corporation created by act of general assembly of the state of Indiana, with its home office at Ft. Wayne, Ind., and that it is and has been for more than four years a resident of Allen county, Ind.; that appellant's general agent is a resident of Marion county, Ind., and has been since its incorporation, and has never had a residence elsewhere, and that such general agent has his office at Indianapolis, in Marion county; that neither appellant nor such general agent is, or ever has been, a resident of Clinton county, Ind., and that no officer of appellant, or of such general agent, is, or ever has been, a resident of Clinton county; that, when the policy in suit was executed, appellant had an agent in Carroll county, Ind., who resided and maintained his office there, and that such agent at no time resided or had an office in Clinton county; that all negotiations relating to the issuance of the policy sued on were had by and through such agent, and such agency, in Carroll county, and that no agent of appellant residing in Clinton county had anything to do with issuing the policy; that appellee's cause of action is not connected with, and does not grow out of, the business of any office or agency of appellant in Clinton county; wherefore it is asked that the action abate. This answer is good in abatement, and the demurrer should have been overruled, unless, as argued by appellee, the question was waived by appellant taking other steps in defense of the action before pleading to the jurisdiction. The transcript shows that appellant first demurred to the complaint for want of facts, which was overruled. Some days afterwards appellant asked and secured an order requiring appellee to submit herself to an examination touching matters averred in her complaint. Afterwards appellant filed a plea in abatement, alleging facts going to show the suit was prematurely brought. A demurrer was sustained to this, and an amended answer filed. Before the court ruled on the demurrer to this amended answer, appellant filed its additional paragraph of answer in abatement, which is above set out. The court then overruled the demurrer to the amended answer in abatement, and sustained the demurrer to the additional answer in abatement.

It does not appear on the face of the complaint that the action was brought in the wrong county, and in such case the objection must be raised by answer. Eel River R. Co. v. State, 143 Ind. 231, 42 N. E. 617;Insurance Co. v. Reid, 19 Ind. App. 203, 47 N. E. 947, and 49 N. E. 291. The complaint discloses that the subject-matter of the action is within the ordinary jurisdiction of the circuit court. The statute provides that the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived. Burns' Rev. St. 1894, § 346. In Railroad Co. v. Scearce, 23 Ind. 223, it was held that, when a demurrer was sustained, judgment, appeal, reversal, and the cause certified back, it was too late to plead in abatement going only to the jurisdiction of the court over the person of the defendant. In Bauer v. Samson Lodge, 102 Ind. 262, 1 N. E. 571, it was held that a demurrer does not cut off the right to plead in abatement contesting the plaintiff's right to maintain the action. But this rule does not apply where the plea questions jurisdiction of the person. In such cases it is held that a plea questioning jurisdiction over the person will not be entertained after demurrer to the complaint. Slauter v. Hollowell, 90 Ind. 286;Singleton v. O'Blenis, 125 Ind. 151, 25 N. E. 154. In the case at bar, as it does not appear in the complaint that there was no jurisdiction of the person, an objection on that ground, by plea in abatement, after an appearance and demurrer, came too late.

The fifth assignment of error is overruling the demurrer to appellee's reply to appellant's amended answer in abatement, and the sixth is overruling the motion for a new trial on the issues joined on the amended answer in abatement. These may be considered together. The amended answer in abatement alleged, in substance, that the first proofs of loss did not comply with the policy; that demand was made for additional proofs; that additional proofs were furnished in response to such demand; and that suit was brought within 60 days after the additional proofs were furnished. The reply alleges that, on August 20th, proofs of loss were furnished, which were verified by appellee's husband, who was at the time of the fire, and many years previous, her agent in charge of the stock of goods, and had knowledge of the same; that he verified the proofs for her and in her behalf; that, on October 2d, appellant addressed to her a letter, which she received October 3d, demanding “proofs according to the...