Globe & Rutgers Fire Insurance Company v. Indiana Reduction Company
| Decision Date | 27 June 1916 |
| Docket Number | 9,059 |
| Citation | 113 N.E. 425,62 Ind.App. 528 |
| Parties | THE GLOBE & RUTGERS FIRE INSURANCE COMPANY v. THE INDIANA REDUCTION COMPANY |
| Court | Indiana Appellate Court |
From Marion Circuit Court (21,965); Charles Remster, Judge.
Action by the Indiana Reduction Company against the Globe & Rutgers Fire Insurance Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
James Bingham, John B. Elam, J. W. Fesler, Harvey J. Elam and Remster A. Bingham, for appellant.
Leander J. Monks, John F. Robbins, Henry C. Starr and James P Goodrich, for appellee.
This is an appeal from a judgment in appellees' favor for $ 4,891.50, in an action brought by it to recover on four insurance policies issued by appellant. These policies except as to dates and amounts, are identical in their terms. The complaint is in four paragraphs, each of which is based on one of said policies, and such paragraphs are in other respects substantially identical in their averments.
The same defense is interposed to each of these paragraphs of complaint, and consists of an answer in general denial and an affirmative paragraph predicated on a stipulation in the policy which provides that (we quote that part only which has controlling influence on the questions presented by the appeal) the "entire policy unless otherwise provided by agreement hereon or added hereto shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises * * * gasoline." The part of such answer affecting the question presented by this appeal charges that appellee without appellant's knowledge consent or permission, kept, used and allowed gasoline on the insured's premises, and thereby voided the policy on which its cause of action is based.
To said affirmative answer appellee filed a reply in general denial and a special reply, which, as affecting the question involved, alleged in substance that at the time the policy sued on was received by appellee it was engaged in the process of degreasing garbage, and that in such process it was necessarily required to keep and use gasoline on the premises insured, as appellant at all times well knew; that it did so keep and use the same under such policy, with the knowledge and consent of appellant and as a necessary part of said business; that it at no time stored, kept, or used more gasoline on said premises than the needs of its business at such times required; and that the gasoline so kept and used did not in any manner cause or contribute to the fire or loss of appellee complained of, and that none of the same was consumed by said fire.
Six alleged errors are assigned in this court, but only the one challenging the overruling of appellant's motion for new trial is mentioned or referred to in appellant's points and authorities. Such other assigned errors are therefore waived. Rule 22, cl. 5. Macbeth Evans Glass Co. v. Jones (1911), 176 Ind. 221, 95 N.E. 567; Bennett v. Root Furniture Co. (1911), 176 Ind. 606, 96 N.E. 708. The first two grounds of appellant's motion for a new trial, respectively, challenge the decision of the trial court as not being sustained by sufficient evidence and as being contrary to law. By these grounds of its motion appellant presents the same question, which is in fact the controlling question in the case, and upon its determination the result of the appeal depends.
To the end that the questions presented and the respective contentions of the parties hereto may be better understood, we preface a statement of such questions and contentions with a statement of the undisputed facts shown by the evidence and the admission of the parties: On and before December 9, 1911, and up to and including May 25, 1912, the Indianapolis Desiccating Company (hereinafter referred to as I. D. Co.), a corporation, owned certain buildings, machinery and personal property connected with and constituting a garbage reduction plant located on leased premises known as the Seller's farm near the city of Indianapolis. During this period four policies of insurance were issued by appellant on said property in favor of said I. D. Co., viz., two policies for $ 1,000 each for one year, beginning at noon December 9 and 19, 1911, respectively; one for $ 500 and another for $ 2,000, beginning at noon, March 14 and May 20, 1912, respectively. These policies were written through George M. Cobb & Company. Later the rider hereinafter referred to was attached to each of said policies, and they, as respectively changed and modified by such rider, are the policies on which appellee's several paragraphs of complaint are respectively based. On May 26, 1912, the I. D. Co. sold, assigned and transferred its plant and the property connected therewith to appellee, the Indiana Reduction Company, hereinafter referred to as the I. R. Co., and on the same day, by written assignment entered on the back of each of said policies, assigned its interest as owner of the property covered by such policies to the I. R. Co., subject to appellant's consent, which assignment was on the same day consented to in writing by appellant, through its said agent, George M. Cobb & Company. Appellee, after purchasing said garbage reduction plant, made additions to and improvements therein, and changed it to what is generally known as a degreasing plant; that is to say, instead of depending on hydraulic pressure alone for taking the oil and grease out of the garbage, they used gasoline as a solvent for such purpose. After making these changes and improvements in its plant, additional insurance was desired, and obtained with different companies, through the agency of the Security Trust Company of Indianapolis, acting as a broker for that purpose. Through negotiations between such broker and appellant's agent on August 1, 1912, a rider bearing the heading "Indiana Reduction Company" was attached to each of said policies. On August 25, 1912, the property was consumed by fire. In so far as the property covered by the policies sued on are involved the loss was total, and proper proof thereof was made, and was not paid.
As before indicated, for the purposes of the questions presented by this appeal, appellant's sole defense rests on its claim that appellee voided the policy sued on by keeping and using gasoline on the insured premises. Appellee concedes that gasoline was used and stored in a tank on said premises, but insists in effect that the placing of the rider on the policies originally issued was in effect the making of a new contract of insurance as of that date, and that at that time and before appellant actually and constructively knew that gasoline was being used on said premises, and hence was waived its right to avoid or defend an action on such policies on the ground of a breach of said condition.
It seems to be appellant's contention that the question of the waiver of the provision of the policy prohibiting the use of gasoline on said premises should be determined from conditions as they existed when the insurance was originally issued, and from appellant's knowledge at that time, and that the evidence shows without contradiction that gasoline was not then used on the premises. It is further contended by appellant that the evidence fails to show that it either actually or constructively knew, at any time before the fire, that gasoline was in fact being kept and used on the insured premises; that the policy expressly prohibits the use or presence of gasoline on the premises without the permit of appellant, and that such permit was not shown, either by the rider or by any other evidence in the case.
In setting out the evidence, pertinent to and affecting said question, it will suffice to set out that most favorable to appellee, because, where there is any evidence fairly tending to support each of the elements necessary to sustain the decision of the trial court, such decision will not be reversed on the ground of the insufficiency of the evidence. Indiana, etc., Traction Co. v. Keiter (1910), 175 Ind. 268, 92 N.E. 982; Chicago, etc., R. Co. v. Hamerick (1911), 50 Ind.App. 425, 96 N.E. 649. In addition to the undisputed facts, supra, there was evidence affecting said question favorable to appellee in substance as follows:
George M. Cobb testified in substance as follows: I am now, and when the policies in suit were issued was, president of George M. Cobb & Company, a corporation engaged in the insurance business, and as such issued said policies and signed them "George M. Cobb and Company, General Agents." My company has been appellant's state or general agent at Indianapolis for eleven years, and was also its local agent at said city, and was such general or state agent and local agent when the policies in suit were issued and the rider, headed "Indiana Reduction Company," was attached thereto. All of said riders were signed by "George M. Cobb & Company, Agents," etc. The signature seems to be that of Mr. Holland, an employe of such company, who had authority to so sign such riders. The stamp appearing at the bottom of each of said riders, containing the words, "This form substituted for all other forms from this date, August 1, 1912", looks like the stamp of our company. The insurance covered by these policies was placed by other agents, who acted as brokers and received part of the premiums. It is customary for the placing agent or broker to prepare the form, and when such form is received by the agent of the insurance company and signed by him he has then "committed his company." The placing agent or broker brings his business in and seldom requests that it be placed with any particular company but intends that we shall write it in some...
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