German Fire Ins. Co. v. Seibert

• Decision Date: 08 March 1900
• Citation: 24 Ind.App. 279,56 N.E. 686
• Parties: GERMAN FIRE INS. CO. v. SEIBERT.
• Court: Indiana Appellate Court

24 Ind.App. 279

56 N.E. 686

GERMAN FIRE INS. CO.

v.SEIBERT.

Appellate Court of Indiana.

March 8, 1900.

Appeal from superior court, Lake county; Harry B. Tuthill, Judge.

Action by Richard Seibert against the German Fire Insurance Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.Agnew & Kelly and Borders & Becker, for appellant. Stinson Bros. & Reading, for appellee.

COMSTOCK, J.

Appellee (plaintiff below) brought this action to recover a balance which he alleged to be due him on a policy of insurance against fire issued by appellant upon his household goods and wearing apparel. The policy was made a part of the complaint. Appellant answered in three paragraphs: The first, a general denial; the second, payment; the third, a settlement and payment of the amount found due. The cause was submitted to the court for trial, which resulted in a judgment in favor of appellee for $387. Upon this appeal two questions are discussed: (1) The sufficiency of the complaint; (2) the overruling of appellant's motion for a new trial.

The complaint, in substance, alleges that the defendant is indebted to plaintiff in the sum of $387 on family wearing apparel, as covered by a certain fire insurance policy (No. 1,010), which is made an exhibit to the complaint, which policy was executed by defendant, through its agents, for a consideration of $4.25, and by which policy defendant undertook to insure the plaintiff's furniture, wearing apparel, etc., against loss by fire, in the sum of $850; that said furniture, etc., was destroyed by fire April 8, 1898, while the policy was in force; that plaintiff has performed his part of the contract; that plaintiff was the owner of the furniture, etc., at the time the policy was issued, and at the time of the fire; that there has been an adjustment of the loss with reference to the furniture destroyed, but no adjustment with reference to the wearing apparel covered by the policy. The complaint also avers that an itemized statement of the furniture destroyed is filed with the complaint as Exhibit B, and that an itemized statement of the value of the wearing apparel is filed with the complaint as Exhibit C.

The objections urged to the complaint are (1) that it contains no averments as to the value of the property adjusted; (2) that it does not show that the wearing apparel and trinkets were covered by the policy.

The complaint alleges that the appellant is indebted to appellee in the sum of $387 because of its failure to reimburse him for the loss of his property by fire. The law presumes that property destroyed by fire is of some value. Insurance Co. v. Black, 80 Ind. 513. A motion to make the complaint more specific would, no doubt, have been sustained by the court. This objection to the complaint is not well taken.

Was the wearing apparel covered by the policy? The following is the printed slip attached to the policy, designating the distribution of the amount of the insurance,-$850.

+-----------------------------------------------------------------------------+
                ¦$      ¦on the one-story, shingle-roofed frame building, with adjoining      ¦
                ¦nothing¦additions, while occupied as a dwelling house, and situated No. 335  ¦
                ¦       ¦Sohl street, to the city of Hammond, Lake county, Indiana.           ¦
                +-------+---------------------------------------------------------------------¦
                ¦$800.00¦on household and kitchen furniture, * * * all while contained in the ¦
                ¦       ¦above-described building, and                                        ¦
                +-------+---------------------------------------------------------------------¦
                ¦$      ¦on family wearing apparel while contained, etc.                      ¦
                +-------+---------------------------------------------------------------------¦
                ¦$ Noth ¦on piano while contained, etc.                                       ¦
                +-----------------------------------------------------------------------------+
                

The use of the conjunction “and,”...