Indiana Ins. Co. v. Pringle

• Decision Date: 17 February 1899
• Parties: INDIANA INS. CO. v. PRINGLE.
• Court: Indiana Appellate Court

21 Ind.App. 559

52 N.E. 821

INDIANA INS. CO.

v.PRINGLE.

Appellate Court of Indiana.

Feb. 17, 1899.

Appeal from circuit court, Johnson county; W. J. Buckingham, Judge.

Action by John W. Pringle against the Indiana Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Chambers, Pickens & Moore, for appellant. Shirley & Parks, for appellee.

COMSTOCK, J.

This action was brought in the Marion circuit court by appellee against appellant on a policy of insurance against fire, and tried in the Johnson circuit court upon change of venue. The complaint is in one paragraph. A copy of the policy was made a part thereof. It was issued upon a stock of goods, wares, merchandise, and store fixtures. It contained, in addition to the usual averments in such cases, the further allegation of a written agreement entered into between the company, through its adjuster, and the appellee, of the amount of the loss. A copy of this agreement was made a part of the complaint. No demurrer was filed to the complaint, and its sufficiency is not questioned here. The defendant answered in four paragraphs. The first is the general denial. In the second it is averred that the property insured was incumbered by a chattel mortgage, and that the same remained in force and effect during the entire continuance of said policy, up to the date the property was alleged to have been burned, and that the defendant, at the time, had no knowledge or notice of the existence of said mortgage, nor at any time prior to said alleged loss by fire, and that the plaintiff (appellee) did not procure the written consent of the defendant to such incumbrance, as provided in said policy, and that the plaintiff violated the covenants and agreements of said policy at the time of making the insurance, in failing to notify it at the time, or at any time during the continuance of said insurance, of said mortgage incumbrance. In the third paragraph, defendant (appellant) avers the existence of the chattel mortgage; that the same remained in force during the existence of the policy; and that the defendant had no notice or knowledge of the existence of such mortgage at the time of its delivery, nor at any time since; and that the plaintiff (appellee) violated the covenants and agreements of said policy, in failing to notify the defendant company at the time of the making of such incumbrance,or at any time during the continuance of said mortgage incumbrance, with the additional averment that the company would not have accepted said policy if it had known of the existence thereof. The fourth paragraph sets up the same facts, and charges appellee with fraudulently procuring said policy by withholding from the defendant all knowledge of the fact that the property therein insured was mortgaged; that, after said property was destroyed by fire, appellee fraudulently reported the value of the property to be greater than its actual value; that, by reason of the various facts set out in the several paragraphs of answer, said policy was void and of no effect. Appellee replied-First, by general denial; second, averring that the appellant had notice of the chattel mortgage when the policy was issued. Upon trial by jury, a general verdict was returned in favor of appellee for $1,712.08. With the general verdict, answers were returned to several interrogatories. Judgment was rendered in favor of appellee for said amount.

The only error which is discussed by appellant's learned counsel in this appeal is the action of the court in overruling appellant's motion for a new trial. Ten reasons are set out in the motion for a new trial. The first four will be considered together. They are that the verdict of the jury is contrary to law; contrary to the evidence; contrary to the law and the evidence; is not sustained by sufficient evidence. The first reason urged upon this court is that the evidence failed to show that the conditions of the policy had been complied with, as averred in the complaint. The complaint avers that, immediately after said loss to plaintiff by said fire, he gave notice to said defendant of such loss; that he has on his part fully performed every act which by the terms of the policy he was required to do; that on the 24th day of March, 1897, one J. W. Williams, who was the legally acting and authorized adjuster for said defendant in cases of loss by fire, and this plaintiff, fully agreed upon the amount of plaintiff's loss by said fire, as covered by said policy, which was in the aggregate sum of $1,712.08, which said amount of loss so agreed upon was reduced to writing, and signed by this plaintiff and said Williams, for and on behalf of said defendant as such adjuster, a copy of which agreement was filed with the complaint as an exhibit. Said exhibit is headed or entitled “Statement of John W. Pringle, Loss and Damage to Stock, Furniture, and Fixtures, as Agreed to This 24th Day of March, 1897.” Then follow items of loss, signed at the bottom: “We agree to the above. John W. Pringle. J. W. Williams, Adjuster Ind. Ins. Co.”

The following is one of the provisions of the policy: “As soon after the fire as possible, a particular statement of the loss shall be rendered to this company, signed and sworn to by the assured, stating such knowledge or information as the assured has been able to obtain as to the origin and circumstances of the fire, and also stating the title and interest of the assured and of all others in the property, the cash value thereof, the amount of loss or damage, all other insurance covering any of said property, and a copy of the written portions of all policies and the occupancy of the certain premises.” Appellant contends that this was one of the conditions of the policy which must be complied with before the bringing of suit, and which the appellee avers in his complaint he did comply with, because of the general averment; that the averment that he had performed all the conditions on his part to be performed included making proofs of loss as provided in the foregoing clause of the policy; and that he cannot avail himself of a waiver on the part of appellant of any of the terms and conditions in the policy in the absence of an averment of waiver. Under our statute (Horner's Rev. St. 1897, § 370; Rev. St. 1881, § 370; Burns' Rev. St. 1894, § 373), and a number of decisions, it is sufficient in an action of this character to aver, in general terms, the performance upon the part of the insured of all the terms of the policy. The complaint should affirmatively show a performance of the conditions upon which the claim is based, or that a performance has been waived. The proof of loss was a condition precedent. It was included in the general averment. Its proof was necessary to a recovery under the general averment. Insurance Co. v. Capehart, 108 Ind. 271, 8 N. E. 285;Insurance Co. v. Vanlue, 126 Ind. 410, 26 N. E. 119.

The complaint in this case states the facts attending the issuing of the policy; the destruction of the property by fire; the agreement as to the value of the property destroyed. It avers that “on the 24th day of March, 1897, one J. W. Williams, who was the legally acting and authorized adjuster of said defendant in cases of loss by fire, and this plaintiff, fully agreed upon the amount of plaintiff's loss by said fire, as covered by said policy,” etc. Appellant was informed by this averment that appellee relied upon an agreement as to the amount of his loss. We do not deem it necessary to decide whether the allegations in the complaint before us set out a waiver. Upon trial of the cause, without objection upon the part of appellant, facts were testified to constituting a waiver of the condition of proof of loss. The evidence shows that the fire occurred between 10 and 11 o'clock the night of February 6, 1897. Appellee telegraphed King, the agent of the company, who had written the policy, on the morning of the 7th of February. King came to the scene of the fire that evening, and had a talk with appellee with reference to the fire. Four days afterwards, Williams, the adjuster, called on appellee, on which occasion he requested appellee to get the bills of his goods purchased. He subsequently called on him also for the books and accounts. They were delivered to and...