Geiss v. The Franklin Insurance Company

• Decision Date: 08 April 1890
• Docket Number: 14,098
• Citation: 24 N.E. 99,123 Ind. 172
• Parties: Geiss v. The Franklin Insurance Company
• Court: Indiana Supreme Court

24 N.E. 99

123 Ind. 172

Geiss v. The Franklin Insurance Company

No. 14,098

Supreme Court of Indiana

April 8, 1890

From the Posey Circuit Court.

The judgment is affirmed, with costs.

F. P Leonard, for appellant.

A. L Roach and G. V. Menzies, for appellee.

OPINION

Mitchell, C. J.

Geiss sued the Franklin Insurance Company to recover the amount of loss alleged to have resulted to him from the destruction of certain personal property, which had been insured against loss by fire, under a policy issued to the plaintiff by the above-named insurance company. By the terms of the policy the company stipulated, for a gross sum, to insure separate and distinct articles and kinds of property, all contained in the same building, for certain specific and distinct sums, the whole aggregating one thousand dollars. One of the articles covered by the policy was a soda fountain, which was insured separately for the sum of $ 350. Smaller sums were distributed over other classes of property. The policy contained a stipulation to the effect that, in case the assured was not the sole, absolute, and unconditional owner of the property insured, the policy should be void. Before taking out the policy the assured had purchased the soda fountain therein mentioned, and the appurtenances thereto from a manufacturer in Boston, and had given his notes for the purchase-price, in each of which it was stipulated, in effect, that the title to the property should be and remain in the seller until the notes for the purchase-price were all fully paid. The notes had all fallen due, and about half of them had been paid, when the fire occurred which destroyed the soda fountain, as well as all the other property covered by the policy.

The foregoing facts having appeared in evidence, together with the further fact that the assured was not aware of the legal effect of the stipulations contained in the notes, so far as it affected the ownership of the property or until he had taken professional advice after the fire, the court instructed the jury to return a verdict for the defendant.

It is conceded that the assured was not the sole, absolute, and unconditional owner of the soda fountain, and apparatus connected therewith. It follows, as a matter of cause, that, as applied to that item of property, the policy was void. Carpenter v. German-American Ins. Co., 52 Hun 249, 4 N.Y.S. 925. The question is, can it be upheld as respects the other separate and distinct classes of property?

In Havens v. Home Ins. Co., 111 Ind. 90, 12 N.E. 137, the conclusion was reached that where property covered by a policy of insurance, although consisting of separate items, constitutes substantially one risk, and is necessarily subject to destruction by the same conflagration, then, even though separate amounts of insurance be apportioned to each separate item or class of property, if the considerations for the contract and the risk are both indivisible, the contract must be treated as entire, and any breach of a stipulation which renders the policy void as to a part, affects the other items in the same manner. See, also, Phoenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N.E. 546; Pickel v. Phoenix Ins. Co., 119 Ind. 291, 21 N.E. 898.

The aggregate amount of the policy in the present case was $ 1,000. This was apportioned in different amounts, over six distinct and separate items or classes of property, more than one-third of the whole amount being upon the soda fountain to which the assured had only a conditional right. It was all exposed to one risk, and the consideration for the policy was a specified sum. The...