Home Ins. Co. v. Boyd

• Decision Date: 28 January 1898
• Citation: 49 N.E. 285,19 Ind.App. 173
• Parties: HOME INS. CO. v. BOYD.
• Court: Indiana Appellate Court

19 Ind.App. 173

49 N.E. 285

HOME INS. CO.

v.BOYD.

Appellate Court of Indiana.

Jan. 28, 1898.

Appeal from circuit court, Shelby county; William J. Buckingham, Judge.

Action by Philander H. Boyd against the Home Insurance Company, etc. From a judgment on a special verdict for plaintiff, defendant appeals. Reversed.

Marsh & Cook, for appellant. R. A. Black and Black & Pugh, for appellee.

WILEY, J.

Appellee sued appellant upon an insurance policy to recover for loss sustained by fire. The complaint avers that on October 31, 1894, appellee was the owner of a certain frame dwelling house in Hancock county, Ind., and on November 5, 1894, appellant issued to him its policy of insurance thereon, insuring him against loss by fire from October 31, 1894, noon, to October 31, 1897, noon, in the sum of $1,000; that the premium thereon was $10, which was paid; that on December 1, 1894, said house was totally destroyed by fire, without fault or negligence of appellee, and that he continued as the owner of said property from said 31st day of October, 1894, up to and including the date of said fire. The complaint avers that said building was situated in the city of Greenfield, in said county, and that one Elmer E. Stoner was, and still is, the general agent and adjuster of appellant, and that immediately after said fire said Stoner had full knowledge of the destruction of said building by fire, and of said loss, and that within five days of said fire said Stoner, acting for appellant, notified appellee that appellant would not pay said loss, on the sole ground that said house was not occupied at the time it was so destroyed, and that thereby appellant waived notice of loss and proof thereof as required by said policy; that said property was of the value of $1,200; that no part of said loss has been paid and that the same is due. The complaint further avers that appellee has performed all the conditions of said policy on his part, and a copy of the policy is filed with the complaint as an exhibit. Appellant demurred to the complaint, which was overruled, and it excepted. Thereupon it answered in five paragraphs: (1) General denial. (2) That at the time of the fire the house was vacant. (3) That at the time of the fire the house was unoccupied. (4) That at the time the house was uninhabited. (5) That when appellee applied for said insurance he represented in his application that he held title to said property by warranty deed, when in fact his only title was by sheriff's deed, and that by the terms of said policy and application said representations became warranties, binding plaintiff upon said contract, upon which representations appellant had a right to and did rely, and upon which it issued said policy. To the 2d, 3d, 4th, and 5th paragraphs of answer appellee demurred, which demurrer was overruledas to the 2d, 3d, and 4th, and sustained as to the 5th, paragraph, to which later ruling appellant excepted. Appellant replied to the 2d, 3d, and 4th paragraphs of answer by general denial, trial by jury, special verdict, and judgment in favor of appellee for $1,000. Appellant's motion for a venire de novo, judgment in its favor on the special verdict, and for a new trial, were each unavailing, and to the adverse rulings thereon appellant reserved exceptions. There are seven specifications in appellant's assignment of errors, as follows: (1) That the complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in overruling the demurrer to the complaint. (3) The court erred in sustaining appellee's demurrer to the 5th paragraph of answer. (4) The court erred in overruling appellant's motion for a venire de novo. (5) The court erred in sustaining appellee's motion for judgment on the special verdict. (6) The court erred in overruling appellant's motion for judgment on the special verdict. (7) The court erred in overruling appellant's motion for a new trial.

The first and second specifications of the assignment of errors may be considered together, as they both present the same question. It is first contended by appellant that the complaint is bad because of the absence of any averment that the house was occupied at the time of the fire. The policy, a copy of which accompanies the complaint as an exhibit, contains the following provisions: “If the risk be increased in any manner, * * * or if the premises are now vacant, unoccupied, or uninhabited, or shall become vacant, unoccupied, or uninhabited, without written consent hereon,” etc., “then * * * this policy shall become null and void.” In support of its contention that the complaint should negative these provisions, appellant relies on Insurance Co. v. Black, 80 Ind. 513. The language of the learned judge who wrote the opinion in that case would seem to sustain the proposition. Franklin, C., said: “According to the terms of the policy, which is made part of the answer, and copied in the record, if the premises should cease to be occupied the policy would cease to be valid. This made it necessary to aver in the complaint that the house was occupied to the time of the burning.” The complaint in that case also averred that the insured had complied with all the terms of the policy on his part, but the suit was brought by an assignee of the policy, and there was no such averment on the part of the assignee. We must regard the provisions in the policy as to vacancy, etc., as conditions subsequent, and not conditions precedent. In the complaint before us, appellee avers that he performed all the conditions of said policy on his part, and such allegation must be construed to mean that he performed all conditions precedent. Mr. May, in his work on Insurance, says that the plaintiff need not aver performance or nonperformance of conditions subsequent, nor negative prohibited acts, or allege that he is within the excepted risks. May, Ins. §§ 589, 590. In Insurance Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868, it was held that the averment that appellee performed all the conditions in the policy on his part was intended to apply to and qualify the conduct of the insured to the time of the action, and must be so construed. In Insurance Co. v. Pickel, 119 Ind. 156, 21 N. E. 547, the court said: “Where a policy of insurance contains conditions and warranties, like those contained in this policy, it is sufficient for the plaintiff to show fulfillment of the conditions of recovery which are made such by the contract itself. The burden is then upon the defendant to set forth and prove the truthfulness of the representations, if there are any such, upon which he relies. The plaintiff need not aver the truth of statements contained in the application, nor the performance or nonperformance of conditions subsequent, nor negative prohibited acts.” See May, Ins. §§ 183, 590; Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. 582. In the case from which we have just quoted it was contended that, as the policy provided against the property becoming vacant, etc., to make the complaint good it was necessary to allege that it was not vacant when destroyed by fire. It was held that such allegation was not necessary, as the complaint averred a general performance of conditions, and that the plaintiff was without fault. In the case of Insurance Co. v. Golden, 121 Ind. 524, 23 N. E. 503, the policy sued upon was conditioned that, if the property insured should become vacant or unoccupied without written consent indorsed on the policy, it should become null and void. The complaint did not aver that the property insured was occupied at the time of its destruction, but did aver that the insured, had upon his part performed each and every act which, by the terms of the policy, he was required to do. The court said: “It is contended by counsel for appellant that the complaint is defective, for the reason that it does not specifically aver that the property was not allowed to become vacant, and that it was occupied at the time it was burned. If this is a condition precedent which it was not necessary for the plaintiff to aver the performance of to entitle him to a recovery, the general averment in the complaint is sufficient. Section 370, Rev. St. 1881 [section 373, Rev. St. 1894]. But it may well be questioned whether or not, in the absence of a general averment, this is not a matter of defense which must be pleaded by the defendant, if a vacancy occurred, which would defeat a recovery.” The complaint was held good. See, also, Insurance Co. v. Leonard, 80 Ind. 272;Insurance Co. v. Capehart, 108 Ind. 270, 8 N. E. 285;Assurance Co. v. State, 113 Ind. 331, 15 N. E. 581. These cases seem to settle the question under discussion in favor of appellee. If the condition of the policy providing against vacancy is a condition precedent,-whichwe are of the opinion it is not,-appellant's contention is answered by section 370, Horner's Rev. St. 1897, which provides that in pleading the performance of a condition precedent in a contract it shall be sufficient to allege generally that the party performed all the conditions on his part; and, if such condition is one subsequent, an averment of performance was not necessary. See authorities above cited. The complaint was not bad for a failure to aver that the property was not vacant or unoccupied.

It is next contended by appellant that the complaint is defective in regard to the averments as to waiver of proof of loss. The policy provided that, in case of loss, appellee was to give appellant notice in 15 days at its Western office in Chicago, and within 60 days to render to said office, under oath, a particular and detailed statement and proofs of loss, etc., and that an appraisement thereof should be made. The complaint avers that one Elmer E. Stoner was the general agent of appellant, residing in Greenfield, where said property was situated, and that immediately after said fire he had actual knowledge of the destruction of said...