Hanover Fire Insurance Company v. Dole
| Decision Date | 07 June 1898 |
| Docket Number | 2,478 |
| Citation | 50 N.E. 772,20 Ind.App. 333 |
| Parties | HANOVER FIRE INSURANCE COMPANY v. DOLE |
| Court | Indiana Appellate Court |
From the Whitley Circuit Court.
Affirmed.
Thomas Bates, I. W. Leonard and D. V. Whiteleather, for appellant.
Thomas R. Marshall, Wm. F. McNagney and P. H. Clugston, for appellee.
The questions presented by this appeal arise upon the pleadings.
The second paragraph of complaint avers: That on the 24th day of August, 1895, appellant for a named premium, insured appellee's property for one year against loss by fire in the sum of $ 2,300.00, $ 600.00 of which was on a building, $ 200.00 on store, furniture and fixtures, and $ 1,500.00 on a stock of general merchandise; that the policy stipulated that the assured (A copy of the policy is made part of the complaint.) That $ 100.00 additional insurance was afterwards granted on the store room front, expiring with the policy; that appellee complied in all particulars with the terms of said policy that on August 3, 1896, without appellee's fault, said property was totally destroyed by fire; that on the 12th day of August, 1896, appellee made proof of loss as required by the policy; that appellant refused to pay said loss on the ground that appellee had forfeited his policy by failing to keep an inventory, and books of accounts of his stock locked in an iron safe, but it is averred that appellee had one year to make said inventory and keep the same in such safe; that he is ready and willing to prove that such valuations are correct.
The third paragraph of complaint contains additional averments, to the effect that appellee complied in all particulars with the terms of said policy, except that he failed to put in an iron safe an inventory of the stock of goods which he had made, and an account of his daily sales and purchases, which he likewise kept; that said iron safe at the date of said policy was a small and an old safe, and after said policy was issued, he sold said safe and purchased a new one for the use of the post-office, and which was not to be used for any other purpose; that shortly prior to said loss, appellee explained to one Campbell, agent of appellant, and who had issued said policy, that he had sold his old safe and was not putting his books of accounts of purchases and sales in said new safe, nor had he put the inventory therein; and that said Campbell said he was satisfied with the condition of said stock, and that it was all right for him not to put said inventory and books in said safe.
Demurrers were overruled to these paragraphs and an answer in seven paragraphs filed, the first of which (the general denial), was afterwards withdrawn. A demurrer to each paragraph of answer was sustained, and appellant refusing to plead further, judgment was rendered in appellee's favor for $ 2,472. The overruling of the demurrers to the complaint, and sustaining the demurrers to the answer are the errors assigned.
Counsel for appellant have not discussed the rulings on the demurrers to the fifth, sixth, and seventh paragraphs of answer, and the questions raised by the fourth paragraph of answer are the same as those presented by the demurrer to the third paragraph of complaint.
The second paragraph of answer admits the execution of the policy, and the loss by fire, and avers that by appellee's written application for insurance, made a part of the paragraph, he warranted the truthfulness of all the facts contained therein; that in said application, appellee stated he had taken an inventory of his stock of goods in March, 1895, and that he made an inventory annually. The stipulation about the inventory and books of account, etc., as stated in the complaint, is then set out, and it is averred that appellee, in his application, agreed and warranted that he would take an account of his stock in March, 1896; that appellee did not keep such books of account, did not take an inventory in March, 1896, and did not keep such inventories and books of account in an iron safe, as in his application he had agreed to do.
The breach of the contract pleaded in the third paragraph of answer is failure to place such books and inventories in such safe; that the warranty covered both the inventory made in March, 1895, and the inventory agreed to be made in March, 1896, and that none of said conditions were ever waived by appellant.
In appellee's application for insurance, filed as an exhibit with the second paragraph of answer, he stated that the inventory of the stock was taken annually, and that the last inventory was taken in March, 1895. The assured had agreed to take an inventory of the stock at least once each year during the life of the policy. It cannot be said that he then agreed to take an inventory in March, 1896, and under the ruling in Citizens Insurance Co. v. Sprague, 8 Ind.App. 275, 35 N.E. 720, the assured had one year from and after...
To continue reading
Request your trial