German Fire Insurance Company v. Seibert
| Decision Date | 08 March 1900 |
| Docket Number | 3,031 |
| Citation | 56 N.E. 686,24 Ind.App. 279 |
| Parties | GERMAN FIRE INSURANCE COMPANY v. SEIBERT |
| Court | Indiana Appellate Court |
From the Lake Superior Court.
Reversed.
N. L Agnew, D. E. Kelly, B. Borders and L. Becker, for appellant.
Stinson Bros. & Reading, for appellee.
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. Aetna Ins. 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. "Nothing on the one-story shingle-roofed frame building, with adjoining additions, while occupied as a dwelling-house and situated No. 335 Sohl street, to the city of hammond, Lake County, Indiana. "$ 800 on household and kitchen furniture, * * * all while contained in the above described building, and "$ . . . on family wearing apparel while contained, etc. "$ . . . Nothing on piano while contained, etc."
The use of the conjunction "and," written at the conclusion of the description of the household furniture, justified the trial court in construing the policy as providing for the loss of the wearing apparel, together with the furniture, in the sum of $ 800; the indemnity to be paid upon the property described in the two clauses as the loss should appear.
It is further urged against the complaint that as it shows that there had been a settlement between appellant and appellee that it should also aver that appellee had refunded, or offered to refund any benefits he received from said settlement; that it fails to do this. The averment to which appellant's counsel refer is as follows: "Plaintiff...
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