German Baptist Tri-County Mut. Protective Ass'n of Cass v. Conner

• Decision Date: 17 April 1917
• Docket Number: No. 9208.,9208.
• Citation: 115 N.E. 804,64 Ind.App. 293
• Parties: GERMAN BAPTIST TRI-COUNTY MUT. PROTECTIVE ASS'N OF CASS, MIAMI AND HOWARD COUNTIES v. CONNER.
• Court: Indiana Appellate Court

64 Ind.App. 293

115 N.E. 804

GERMAN BAPTIST TRI-COUNTY MUT. PROTECTIVE ASS'N OF CASS, MIAMI AND HOWARD COUNTIES

v.CONNER.

No. 9208.

Appellate Court of Indiana, Division No. 2.

April 17, 1917.

Appeal from Circuit Court, Fulton County; Smith N. Stevens, Judge.

Action by Elmer E. Conner against the German Baptist Tri-County Mutual Protective Association of Cass, Miami and Howard Counties. From a judgment for plaintiff, defendant appeals. Affirmed.Cox & Andrews, of Peru, for appellant. Frank D. Butler and Albert Ward, both of Peru, and E. E. Murphy, of Rochester, for appellee.

DAUSMAN, J.

Appellee instituted this action against appellant to recover on a policy of fire insurance. Demurrer to each paragraph of complaint, on the ground that neither paragraph states facts sufficient to constitute a cause of action, overruled. Answer in four paragraphs. Demurrer to the second, third, and fourth paragraphs, of answer, overruled. Reply in four paragraphs. Demurrer to all paragraphs of reply except the first. The demurrer was sustained to the fourth paragraph of reply and overruled as to the second and third. Trial by jury. Verdict and judgment for appellee in the sum of $2,453.90. Motion for a new trial overruled. The errors properly assigned are the following: (1) The court erred in overruling the demurrer to the first paragraph of complaint. (2) The court erred in overruling the demurrer to the second paragraph of complaint. (3) The court erred in overruling the demurrer to the second and third paragraphs of reply. (4) The court erred in overruling the motion for a new trial.

[1][2] The complaint consists of two voluminous paragraphs. So much of the first paragraph as has any bearing on the objection raised by the demurrer is in the following words and figures:

“That the defendant is now, and for some years last past has been, an insurance corporation, organized and existing under the laws of the state of Indiana for the purpose of mutual insurance of the property of its respective members against loss by fire or damage by lightning; and that for more than ten years last past the defendant has been engaged in the general insurance business in the counties of Cass, Miami, and Howard, and during said time has been insuring its members against loss by fire or damage by lightning upon dwelling houses, barns, outbuildings and their contents, household goods, wearing apparel, provisions, musical instruments, etc., all as provided by the laws of the state of Indiana.

That on the 28th day of December, 1906, the plaintiff became a member of said company. That on said day the company issued to him a certificate of such membership and policy of insurance, duly signed by the proper officers of said company. That a copy of the said certificate and policy is filed herewith, marked ‘Exhibit A’ and made a part of this paragraph of complaint.

That by the terms and conditions of said certificate of membership and policy of insurance, the defendant, in consideration of the payment by plaintiff of the proper membership fee and the annual assessment thereafter to be levied by the defendant, did thereby insure the plaintiff against loss or damage by fire to the total amount of $4,525. That said total amount was subsequently increased to the total amount of $5,225. That the property upon which said insurance was placed is referred to and described in said policy as follows, to wit: ***

That by the terms and conditions of said certificate of membership and policy of insurance, the defendant promised and agreed to make good and to pay to the plaintiff any and all loss or damage, not exceeding the amount that each of said articles was insured for, that should happen by fire to the said property during the continuance and life of said certificate of membership and policy of insurance.

That on the 13th day of February, 1913, and while said certificate of membership and policy of insurance were in full force and effect, the property described in said policy was injured, damaged, and destroyed by fire in the manner and form more particularly described as follows: That on said date plaintiff had in the basement of said house an acetylene lighting plant which generated a combustible gas used for the lighting for said house; that in said basement at said time was a stove containing fire and which was used for the purpose of heating the basement; that on said date the gas so generated by said acetylene lighting plant escaped from its proper receptacles and came in immediate and direct contact with the fire in said stove; that said fire instantly ignited and burned said gas and caused a terrific explosion to at once take place; and that by reason of the combustion and explosion so caused and ensuing, the property in said policy described was injured, charred, burned, and damaged as follows, viz.: The walls of said house No. 1 were shattered, cracked, crumbled, and seriously damaged and the plastering torn loose and shattered therefrom;the windows were broken; floors and roof were damaged; the doors were cracked and split and said house otherwise damaged. That the damages as aforesaid to said house were in the sum of $2,500. That the household goods, musical instruments, sugar house, contents of sugar house, and the smokehouse were damaged in the following amount, viz.: Household goods, $500; musical instruments, $50; sugar house, $25; contents of sugar house, $15; smokehouse, $25- making a total loss to said property so insured in the sum of $3,115.

That the insurance on the property so burned, damaged, and destroyed was and is in the sum of $2,015. That the damages to said property as aforesaid are such damages as are covered by and insured against in said certificate of membership and policy of insurance, and that all of said loss and damage was caused without any fault, negligence, or carelessness on the part of plaintiff.”

The copy of the policy filed with the complaint is in the following words and figures: No. 6509. $4,525.00

Certificate of Membership and Policy of Insurance.

Issued by The German Baptist Fire and Lightning, Tri-County Mutual Protective Association of Cass, Miami and Howard Counties of the State of Indiana.

To Elmer E. Conner of Jefferson township, Miami County, State of Indiana. P. O. Address, Peru, R. F. D. No. 5:

On the following property: (Here follows a list of the items of property insured with the amount of insurance on each item.)

Total amount insured, $4,525.00.

September 5, 1910. Time of continuance, five years.

Time of commencement, noon December 28, 1906.

N. B. See rules on back of this policy.

[Seal.] S. T. Fisher, Peru, Ind., President.

E. S. Metsger, Peru, Ind., Secretary.

J. C. Olin, Adjuster.

S. T. Fisher, Agent.

On the back of the policy are printed 36 rules or by-laws which constitute part of the contract of insurance. The only statements in these by-laws which tend to throw any light on the controversy presented here are the following:

“Rule 1. The object of this association shall be purely Christian-to do unto others as we would have others do unto us; to afford relief; and to pay each member thereof losses sustained by the burning of buildings or other property insured in the association.”

“Rule 9. Any member suffering loss by fire or lightning shall without delay notify one of the directors, who shall...