Humboldt Fire Ins. Co. v. Ashby

Decision Date21 January 1915
Docket NumberNo. 8408.,8408.
Citation108 N.E. 150,57 Ind.App. 682
PartiesHUMBOLDT FIRE INS. CO. v. ASHBY.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Dekalb County; Frank M. Powers, Judge.

Action by Leona Ashby against the Humboldt Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.Link & Atkinson, of Auburn, and Roby & Salsbury and Watson & Esarey, all of Indianapolis, for appellant. Thomas & Townsend and Elmer Leonard, all of Ft. Wayne, for appellee.

CALDWELL, P. J.

Appellant issued to appellee on February 10, 1909, a policy by which certain household goods, musical instruments, etc., described in said policy and situated in a residence building in Ft. Wayne, were insured against loss by fire to the amount of $2,500. Appellee brought this action in the circuit court of Allen county, alleging in her complaint that a fire occurred on the 1st day of February, 1910, by which a large part of such property was destroyed, and another part damaged. She alleges her total loss to be $6,500, and prays a recovery for the full amount of the policy. The sufficiency of the complaint is not challenged.

The cause was sent to the circuit court of Dekalb county, on a change of venue, where the issues were made, and the trial had. There is some confusion, in the transcript as originally filed in this court, respecting the ruling of the trial court on the demurrer to the second, third, and fourth paragraphs of answer. Appellant has briefed the case on the theory that such demurrer was overruled to the third and fourth paragraphs, and sustained as to the second. However, a return to a writ of certiorari, issued from this court, makes it clear that such demurrer was sustained to the second and fourth paragraphs, and overruled only to the third. No error is assigned on the ruling on the demurrer to the fourth paragraph of answer, and the error assigned on such ruling as to the second paragraph is waived by not being discussed.

[1] Appellee filed a reply in three paragraphs to said third paragraph of answer. Appellant's demurrer to the second and third paragraphs of reply was overruled. The errors assigned on such rulings are also waived by not being discussed in appellant's brief. A trial by jury was had on the issues formed by the complaint, and the first and third paragraphs of answer thereto, and the said three paragraphs of reply to the third paragraph of answer, resulting in a verdict in appellee's favor for $2,250, on which judgment was rendered. The questions properly presented, and not waived, arise under the motion for a new trial.

Said fourth paragraph of answer, to which a demurrer was sustained as aforesaid, was to the effect that appellee's title to the property described in said policy was in the nature of a conditional ownership, which fact was known to appellee, and by her concealed from appellant, and that said policy contained the following provision:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional or sole ownership.”

Appellant assuming that the demurrer had been overruled to such paragraph, and that it constituted a part of the pleadings, by which the issues were finally settled, argues that the first instruction given at appellee's request was erroneous. The criticism of said instruction is based on the fact that by it the court informed the jury respecting the issues made by the pleadings, and that such instruction contains no reference to said fourth paragraph of answer, or to the issue formed by it and the complaint. As we have indicated, appellant's assumption is erroneous, and it follows that the criticism of said instruction is without merit.

Appellant's second, third, fourth, fifth, and eleventh points are based on the same erroneous assumption, as indicated above. The argument is to the effect that no reply was filed to said paragraph of answer; that the facts thereby pleaded, if true, are sufficient to defeat appellee's entire cause of action, in the absence of a showing of waiver or estoppel, and that there was no reply that might serve as a basis for such showing; that the truth of the matter pleaded by said paragraph of answer was established by uncontradicted evidence, and hence appellant contends that the verdict of the jury is not sustained by the evidence, and is contrary to law. For reasons already given, it is apparent that appellant must fail in such contention. For a like reason, there was no error in refusing the fourteenth instruction requested by appellant.

The third paragraph of answer, as far as material, is to the following effect: That, after said policy was issued, appellee procured on the same property valid insurance from the Western Insurance Company of Pittsburgh, Pa., in the sum of $2,500, without appellant's consent in writing indorsed on the policy. This paragraph of answer is based on a provision in the policy set out in said paragraphs as follows:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy.”

As we have said, appellee filed to said paragraph of answer a reply in three paragraphs, of which the first was a general denial. The second paragraph of reply is substantially as follows: That appellant's agents, who issued the policy in suit, issued to appellee at the same time the policy described in said paragraph of answer, and that appellee procured the two policies at one and the same time; that appellant knew of the issuing of both policies and consented thereto; that appellee's attention was not called to said provision of the policy in suit, and that she had no knowledge of such...

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