Globe & Rutgers Fire Ins. Co. v. Hamilton

• Decision Date: 21 June 1917
• Docket Number: No. 9313.,9313.
• Citation: 116 N.E. 597,65 Ind.App. 541
• Court: Indiana Appellate Court
• Parties: GLOBE & RUTGERS FIRE INS. CO. v. HAMILTON.

65 Ind.App. 541

116 N.E. 597

GLOBE & RUTGERS FIRE INS. CO.

v.HAMILTON.

No. 9313.

Appellate Court of Indiana, Division No. 1.

June 21, 1917.

Appeal from Circuit Court, Putnam County; James P. Hughes, Judge.

Action by Fay S. Hamilton against the Globe & Rutgers Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.William J. Henley, Harry A. Fenton, and Jackiel W. Joseph, all of Indianapolis, for appellant. Silas A. Hays, Mat. J. Murphy, and Fay S. Hamilton, all of Greencastle, for appellee.

FELT, J.

This is an action by appellee against appellant on a fire insurance policy. The complaint in one paragraph was answered by a general denial, and by a second paragraph of special answer, to which appellee filed a reply in two paragraphs. A trial by jury resulted in a general verdict for appellee in the sum of $100.

With the general verdict the jury returned answers to certain interrogatories. The court overruled appellant's motion for judgment on the answers to the interrogatories, and for a new trial, and rendered judgment on the general verdict from which appellant appealed and has assigned errors as follows: (1) Overruling its motion to require appellee to make his complaint more specific; (2) overruling the demurrer to the complaint; (3) overruling appellant's demurrer to appellee's reply to appellant's second paragraph of answer; (4) overruling appellant's motion for judgment in its favor on the answers to the interrogatories; (5) overruling the motion for a new trial.

[1] By failing to present them in its brief, appellant has waited the first and second assignments.

Omitting formal averments, the complaint in substance charges that appellant, in consideration of $4, insured appellee against loss or damage by fire to the amount of $500 on household furniture, etc., “while contained in the one and one-half story frame, with shingle roof, dwelling house and additions, *** situated at No. 6 Park street in the city of Greencastle, Ind.”; that on July 23, 1914, while said insurance was in full force and effect, plaintiff sustained a direct loss and damage by fire to said property in the sum of $500. Copy of the policy is made part of the complaint by exhibit.

The second paragraph of answer alleges, in substance, that the property of plaintiff insured by defendant under the policy made a part of the complaint has not been burned, damaged, or destroyed by fire since the date of the execution of said policy, while contained in the dwelling therein described.

The second paragraph of reply to defendant's second paragraph of answer alleges, in substance, that the residence described in the policy issued to plaintiff, Hamilton, by defendant, consisted of a story and a half frame building and a one-story frame outbuilding appurtenant thereto and connected therewith by cement walk and a solid board fence; that plaintiff's household articles at and prior to the issuance of the aforesaid policy were located in and used by him in and about said residence, all of which facts were then and there known to the defendant company's agent, to whom plaintiff applied for said insurance; that said agent then and there intended such policy to include and represented to plaintiff that it did include and cover all of his household furniture and personal property located in said residence including said outbuilding or addition appurtenant thereto; that plaintiff relied upon the statement and representations of the aforesaid agent and accepted said policy and paid the premium required therefor; that defendant at all times knew plaintiff and its said agent understood that said policy included and covered plaintiff's said property in the aforesaid dwelling including said outbuilding or addition appurtenant thereto and connected therewith; that plaintiff and said agent intended the description of said personal property in said policy to cover and include the household goods of plaintiff while so located in said dwelling and addition or outbuilding aforesaid, and believed that such description did so include said personal property.

The policy in question was procured by appellee from one John W. Cooper, who was appellant's local agent at Greencastle, Ind. He testified that he was acquainted with the buildings of appellee, occupied by him as a home; that, when appellee applied for insurance on his household goods, he inspected the buildings and considered his household goods; that he prepared the policy by using a form supplied him by appellant's state agent; that he made and wrote in the policy the description of the property, collected the premium from appellee, and delivered to him the policy.

[2] A person so acting for an insurance company is its agent, and his acts and knowledge relating to the property insured at the time the policy was executed are imputed to the company. Indiana Ins. Co. v. Hartwell, 123 Ind. 177, 192, 193, 24 N. E. 100;Humboldt Ins. Co. v. Ashby, 57 Ind. App. 682-687, 108 N. E. 150;Western Ins. Co. v. Ashby, 53 Ind. App. 518-523, 102 N. E. 45;German Fire Ins. Co. v. Greenwald, 51 Ind. App. 469-472, 99 N. E. 1011.

[3] Where a contract is in writing, parol evidence is not admissible to change or modify it, but such testimony may be admitted to enable the court to properly apply the contract to the subject-matter, and, in case of ambiguity, to remove the uncertainty. This rule is invoked to enable the court to ascertain the facts and circumstances as they existed at the time the contract was entered into and to thereby place itself as nearly as possible in the position of the parties whose contract is to be interpreted. Ransdel v. Moore, 153 Ind. 393-407, 53 N. E. 767, 53 L. R. A. 753;Doney v. Laughlin, 50 Ind. App. 38-45, 94 N. E. 1027;Howard v. Adkins, 167 Ind. 184-188, 78 N. E. 665.

[4] Where the language employed is ambiguous or subject to variations in meaning depending upon circumstances and conditions, or the relation in which it was used, parol testimony may be received to inform the court of the conditions out of which the contract arose, thereby enabling it to more accurately ascertain the intent and meaning of the parties as evidenced by their contract. Driscoll v. Penrod, 176 Ind. 19-23, 95 N. E. 313;Reed v. Merchants', etc., Ins. Co., 95 U. S. 23, 24 L. Ed. 348;Warner v. Marshall, 166 Ind. 88-114, 75 N. E. 582.

[5] The court will, if possible, adopt such construction of a written contract as will make it effectual, rather than ineffectual, to carry out the intentions of the parties as gathered from the whole instrument. Driscoll v. Penrod, supra.

[6] Insurance contracts are usually prepared by the insurer, and courts...