Home Ins. Co. v. Sylvester

• Decision Date: 26 June 1900
• Citation: 25 Ind.App. 207,57 N.E. 991
• Parties: HOME INS. CO. v. SYLVESTER.
• Court: Indiana Appellate Court

25 Ind.App. 207

57 N.E. 991

HOME INS. CO.

v.SYLVESTER.

Appellate Court of Indiana.

June 26, 1900.

Appeal from superior court, Madison county; H. C. Ryan, Judge.

Action by the Home Insurance Company against Harvey H. C. Sylvester. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Affirmed.Kittinger, Reardon & Diven, for appellant. Bagot, Ellison & Bagot, for appellee.

WILEY, J.

Action by appellee against appellant upon an insurance policy, to recover for loss of property occasioned by fire. Complaint in a single paragraph, answer in three paragraphs, and reply in four paragraphs. A demurrer for want of facts was overruled to the complaint. Demurrers to the second and third paragraphs of answer and to the second and third paragraphs of reply were overruled. The case was tried by a jury, resulting in a verdict for appellee. Appellant moved for a new trial, which was overruled, and judgment rendered on verdict. All of the above rulings adverse to the appellant are assigned as error. In the order of the argument of counsel, we will first discuss the sufficiency of the complaint.

Objection is urged to the complaint on the ground that there is no averment of proof of loss, and no sufficient averment showing a waiver of proof. The policy sued on contains these provisions: (a) That in case of loss the assured was required to give appellant notice thereof within 15 days; and (b) make proof of loss within 60 days; and (c) that, if the assured complied with all the conditions of the policy to be performed by him, appellant was to pay the loss within 60 days after receiving proof of the loss. The fire occurred June 22, 1897, and the building insured was totally destroyed. The complaint avers a performance of all the conditions of the policy on the part of appellee; that in less than 15 days after the fire he notified appellant of the loss, in writing; that in 2 or 3 days thereafter appellant waived any additional or other proof of loss, by sending its adjuster to adjust the loss; that said adjuster proceeded to adjust the loss, and notified appellee that said loss would not be paid in full, and offered appellee money in settlement, and did not ask him to furnish any proof; that thereafter, and within 60 days after the fire, appellant notified appellee that it would not pay said loss. These averments are sufficient to obviate the objections named. It is the firmly established rule in this state that if an insurance company has been notified of a loss under a policy issued by it, and denies liability and refuses to pay, such facts constitute a complete waiver of proof of loss. Insurance Co. v. Shryer, 85 Ind. 363;Bowlus v. Insurance Co., 133 Ind. 106, 32 N. E. 319, 20 L. R. A. 400;Little v. Insurance Co., 123 Mass. 380;Insurance Co. v. Chew, 11 Ind. App. 330, 38 N. E. 417;Assurance Co. v. McCarty, 18 Ind. App. 449, 48 N. E. 265;Insurance Co. v. Strebe, 16 Ind. App. 110, 44 N. E. 768;Insurance Co. v. Boyd, 19 Ind. App. 173, 49 N. E. 285.

It is also urged that the complaint shows that the action was prematurely brought. It is averred that appellee notified appellant of the loss June 23d, and that within two or three days from that time appellant sent its adjuster to adjust and settle the loss; that said adjuster then notified the appellee that the loss would not be paid. This was a denial of liability, and, as we have seen, a complete waiver of proof of loss. This denial of liability was not later than June 26th, as shown by the complaint; and, as the record shows the action was commenced August 30th, the objection urged to the complaint that the action was prematurely brought is without merit.

The next question discussed by appellant is the overruling of its motion to strike out the second and third paragraphs of reply. The motion was in writing, and the reasons assigned are (1) that neither of said paragraphs is verified; (2) that they are each an argumentative denial; and (3) that they do not contain averments sufficient to avoid the answer. These paragraphs of reply are directed to the second and third paragraphs of answer, and in these answers it is alleged that the policy sued on was issued upon a written application made and signed by appellee; that it contained certain warranties and representations which were alleged to be false and misleading; that they were made with that intent and purpose, and did work fraud and deceit on appellant. For the purpose of disposing of the motion to strike out these paragraphs of reply, it is not necessary to refer in detail to all the specific averments of the second and third paragraphs of answer. The second paragraph of reply avers that one Alexander was the agent of appellant, and was authorized to solicit insurance for it; that, when he made application for the policy sued on, he did not live near the property destroyed; that said Alexander came to appellee to solicit said insurance; that he had formerly taken applications to insure the same property; that he had with him a blank application; that appellee could neither read nor write; that Alexander knew said fact; that he informed said agent that he was not well acquainted with the condition of the property; that said Alexander, as such agent, told appellee that he was well acquainted with said property, and had written insurance on it before; and that thereupon said Alexander filled in all the answers in said application, upon his own knowledge; and that appellee signed it by his mark. The third paragraph of reply is substantially like the second, except it avers that appellee signed the application, by his mark, in blank, upon the promise that said Alexander would correctly and honestly answer all the questions therein, and that in the absence of the appellee said Alexander did write all the answers in said application. The ruling of the court to strike out these paragraphs of the reply must be decided upon reasons assigned in the written motion. The first reason in the motion was that the paragraphs were not verified. It is urged that the replies were pleas of non est factum, and hence were bad, because not verified. We cannot take this view of them. They were pleaded in bar of facts stated in the second and third paragraphs of answer, and it was not necessary that they be verified. There is nothing in the second objection, that the second and third paragraphs of reply were argumentative denials. If they did not amount to more than argumentative denials, overruling the motion to strike them out could not have harmed appellant; and, even if it was error to overrule the motion, it would be no cause for reversal, because harmless. Courts do not reverse judgments for harmless errors. The objection that they state mostly evidentiary facts is not a sufficient ground upon which to base an error in refusing to strike them out. And the further objection that the averments are not sufficient to avoid the answer is not well taken. It is the settled law in this state that where an agent of an insurance company, while acting within the scope of his authority, fills the blanks of an application for insurance, and it contains a misstatement not authorized by the party who signs it, the wrong, if any, will be imputed to the company, and not to the insured. Pickel v. Insurance Co., 119 Ind. 291, 21 N. E. 898. In Rodgers v. Insurance Co., 121 Ind. 570, 23 N. E. 498, a similar question was presented, and in deciding it the court said: “If the application contains any false statements or answers to questions, it is the fault of appellee's agent. It was he...