German-American Insurance Company v. Shepherd
| Decision Date | 10 March 1920 |
| Docket Number | 10,102 |
| Citation | 126 N.E. 447,78 Ind.App. 314 |
| Parties | GERMAN-AMERICAN INSURANCE COMPANY v. SHEPHERD ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 22, 1920. Transfer denied June 2, 1922.
From Wells Circuit Court; William H. Eichhorn, Judge.
Action by George Shepherd and others against the German-American Insurance Company. From a judgment for plaintiffs, the defendant appeals.
Affirmed.
Burke G. Slaymaker, for appellant.
A. W Hamilton, for appellees.
This action was commenced by the appellees against the appellant on a policy of fire insurance. The appellant answered in five paragraphs, the first being a general denial. The second third and fifth paragraphs alleged that the policy sued on provided it should be void if any change, other than by the death of the appellees, should take place in the interest or title of the subject of said insurance, and that appellees had violated the terms of said policy, in that they caused a change in the title and a change in the interest of the subject of said insurance to take place.
The fourth paragraph alleged that appellees had other insurance, and appellant, if liable, was only liable for five-ninths of the loss. A reply of general denial closed the issues. The court found the facts specially and stated conclusions of law thereon. Judgment was rendered for appellees. Appellant excepted to each conclusion of law, and filed its motion for a new trial on the grounds: (1) That the finding of the court is not sustained by sufficient evidence; (2) is contrary to law; (3) that the assessment of the amount of recovery was erroneous, being too large. This motion was overruled and an exception reserved.
The facts as found by the court are in substance as follows: By the terms of the policy sued on, appellant insured the appellees for the term of one year from March 4, 1915, against loss by fire to an amount not exceeding $ 1,000, on a stock of hardware, office furniture and fixtures contained in a one story brick building situated on lot 16, on the west side of Jefferson street in the town of Ossian. The policy provided that it should be void, "If any change other than by death of the insured take place in the interest, title or possession of the subject of insurance," and also that, "If fire occur, the insured shall give immediate notice of any loss thereby in writing" to the appellant.
A fire occurred February 15, 1916, and damaged the property so insured.
January 28, 1916, appellees entered into a written contract with John G. Sterling, wherein said Sterling agreed by way of exchange to sell to appellees certain real estate and in payment for the same appellees agreed to make and deliver a bill of sale of their stock of hardware including fixtures. They also agreed as a part of the payment for said real estate to warrant and sell a part of lot 16, in Ossian, specifically describing the same. Said contract provided for the selection of appraisers to invoice the stock of goods, and it was agreed that each of the parties were to make deeds for the real estate they were to convey, and that said deeds and the bill of sale were to be placed in escrow to be held until delivery was ready to be made. It was also agreed that if either party failed or refused to perform his part, that he should pay to the other party as liquidated damages the sum of $ 1,500. After said contract was executed, and before said fire occurred, the appellees and Sterling started to make an invoice of the stock during which time the cash receipts from the sale of goods which had been invoiced were kept separate from the funds of appellees, and were delivered to Sterling, when the possession of said stock of merchandise was later surrendered to him. The fire in question occurred during the time this invoice was being made.
All merchandise damaged or lost by fire had been invoiced before the fire, but the fixtures had not been invoiced at time of the fire. On February 15, 1916, and after the fire Sterling and appellees entered into a supplemental contract wherein the appellees agreed to pay Sterling the full amount of the damages to the stock of goods and building on account of said fire, and that the deeds and bill of sale were to be held in escrow until the damages were appraised by the appellant.
The appellees had also caused said stock of goods to be insured by the Aetna Insurance Company. On March 3, 1916, appellant and appellees and the Aetna Insurance Company entered into a written agreement for the purpose as expressed therein of providing for an investigation of the fire and determining the amount of the damage caused by the fire, without regard to the liability of the appellant, and it was therein agreed that the loss to the stock was $ 994, and to the fixtures $ 83. It was stated in this agreement that the intent was to preserve the rights of all the parties and that the action of the appellant in making said investigation should not waive or invalidate any rights of either party to the agreement. The damaged property was described in this agreement as being the property of appellees and consisting of a stock of hardware in a brick building on lot 16, west side of Jefferson street in Ossian, Indiana.
March 3, 1916, appellees executed and delivered to said Sterling their bill of sale of the stock of merchandise, furniture and fixtures mentioned in said contract of January 28, which was the stock of goods, furniture and fixtures mentioned in the policy sued on, and on the same day Sterling delivered to appellees, the said deed of conveyance executed by him, and Sterling at that time took possession of the stock of goods, furniture and fixtures mentioned in the complaint and policy sued on, and of the real estate mentioned in said contract of January 28. The property insured was not listed for taxation by appellees in 1916, but was listed and returned for taxation by Sterling. On March 3, 1916, appellees executed to Sterling their promissory note for $ 1,053, that being the actual amount of the damages caused by said fire to the insured property. The possession of the real estate and personal property which appellees agreed to sell to Sterling was from January 28, 1916, to March 3, 1916, held by the appellees, and Sterling retained possession of the real estate described in the contract which he was to convey to appellees, until March 3, 1916. Sterling never gave the appellees any money or thing of value as a consideration passing from him to appellees before March 3, 1916. The deeds, bill of sale and possession of the real estate and personal property mentioned were delivered and exchanged March 3, 1916, and all the differences in the consideration were determined and settled that day. Sterling made no sale of any of the goods in said stock until after he took possession March 3, 1916. Pending and after invoice, but before March 3, a few articles were sold by appellees on credit, and account was made of same, as due appellees, and said accounts were turned over to Sterling. It was the intention of all the parties to said contract that the title to the property theretofore owned by them respectively should not pass until all preliminary matters were completed, including the invoice of the stock and fixtures, the difference if any, settled, and until the bill of sale was given and the papers delivered to the parties entitled thereto.
Upon these facts the court made and stated the following conclusions of law: (1) That on February 15, 1916, appellees were the owners of the property mentioned in the complaint and policy of insurance sued on; (2) that said policy of insurance was at the time of said fire in full force and effect in favor of appellees; (3) that appellees were entitled to recover from appellant the sum of $ 563.32.
Appellant's first contention is that the court erred in the second and third conclusions of law for the reason that there is no finding that the property damaged or destroyed was located in the building described in the policy. The contention being that it must appear that when the fire occurred the property insured was located at the place mentioned in the policy.
The court found that, the property damaged by the fire was insured while located in a one story brick building on lot 16, west side Jefferson street in Ossian; that appellees on January 28, 1916, entered into a written agreement with Sterling to sell their "hardware store and other fixtures located in the one story brick store room on the main street of Ossian," and the following real estate "part of lot 16" on plat of Ossian, the same being described by metes and bounds; that the stock of merchandise and property mentioned in the policy sued on was the property mentioned in the contract between appellees and Sterling, and referred to therein as the hardware store and fixtures; that after the fire appellees and Sterling entered into a supplemental contract, wherein...
To continue reading
Request your trial