Insurance Company of North America v. Hegewald
| Decision Date | 03 April 1903 |
| Docket Number | 19,991 |
| Citation | 66 N.E. 902,161 Ind. 631 |
| Parties | Insurance Company of North America v. Hegewald |
| Court | Indiana Supreme Court |
Rehearing Denied January 8, 1904.
From Floyd Circuit Court; W. C. Utz, Judge.
Action by Arthur F. Hegewald against the Insurance Company of North America of Philadelphia. From a judgment for plaintiff defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901.
Affirmed.
S. N. Chambers, S. O. Pickens and C. W. Moores, for appellant.
C. L. Jewett and H. E. Jewett, for appellee.
Action by appellee to recover upon a policy of fire insurance issued to him by appellant, insuring thereby a dwelling-house against loss by fire. The original complaint consisted of a single paragraph, but subsequently an additional paragraph, numbered two, was filed; and upon this latter paragraph it clearly appears that the action was tried and determined in the lower court, and the special finding based thereon. Consequently we dismiss, without consideration, the errors alleged by appellant in regard to the first paragraph, for, if sustained, under the circumstances, they would be harmless. Appellant, having unsuccessfully demurred for insufficiency of facts to the second paragraph, filed an answer in two paragraphs; the first being the general denial, and the second setting up affirmative matter, to which the plaintiff replied. Upon the issues joined, the court, upon request, made a special finding of facts, and stated its conclusions of law thereon favorable to the plaintiff, and over the defendant's exceptions thereto, and over its motion for a new trial, rendered judgment on the special finding, awarding the plaintiff the sum of $ 950 as damages, which the court found he had sustained as a result of the fire in dispute.
Counsel for appellant argue for a reversal (1) that the court erred in overruling the demurrer to the second paragraph of the complaint; (2) in overruling the demurrer to the second paragraph of reply; (3) that the court erred in its several conclusions of law; (4) denying the motion for a new trial.
Under the second paragraph of the complaint the plaintiff sought to recover upon the insurance policy for a loss sustained by him by reason of a fire destroying the insured property, and also sought to set aside a certain appraisement or award of damages made by appraisers selected by the parties under the provisions and conditions of the policy in suit. As preliminary, it may be said that the second paragraph of the complaint is not a model in its character as a pleading, and contains some general and bald averments. We have endeavored, however, to summarize the facts therein alleged, and the following may be said, in the main, to be the principal or material ones disclosed by the paragraph in question: The defendant is shown to be a corporation organized under the laws of the state of Pennsylvania, and is engaged in the business of fire insurance, having an office in the city of New Albany, Floyd county, Indiana. On June 18, 1900, the plaintiff was the owner of a frame dwelling-house situated in said city, on the premises described in the complaint, which property the defendant on said day insured against loss by fire to the amount of $ 1,500, and duly executed to the plaintiff the fire insurance policy in suit, as the contract in respect to said insurance. This policy is filed with and made a part of the complaint. On February 23, 1901, while the policy was in full force and effect, the property so insured was partially destroyed by fire, and was thereby injured and damaged to the amount of $ 1,200. The value of the house at the time of the fire is shown to be $ 3,500. Immediately after the loss sustained by the fire, the plaintiff notified the defendant of the facts, and all further proof in regard to the loss sustained appears to have been thereupon waived by the defendant. In fact, it is shown that the plaintiff duly performed all the conditions upon his part as exacted by the policy. No part of the damages sustained has been paid, and the whole is shown to be due and unpaid. In regard to plaintiff being the owner of the insured property at the time of its destruction by the fire, the complaint contains the following statement: "The plaintiff says that after the loss and injury to his said property insured by said policy as aforesaid, defendant's adjuster, in company with the plaintiff, visited the premises," etc. The policy, among other things, professes to be granted and issued upon and in reference to certain stipulations and conditions therein contained, among which are the following:
It appears that immediately after the defendant received notice of the fire it sent its agent to New Albany to inspect and adjust the loss occasioned thereby, but that he and the plaintiff were unable to agree upon the damages sustained and thereupon the defendant, by and through its said agent, demanded that, in compliance with the conditions or provisions of the policy herein above set out, the amount of the loss or damages sustained by plaintiff by reason of the fire be submitted to two competent and disinterested appraisers. Thereupon it was agreed between the plaintiff and the defendant that the question with respect to the amount of the loss be submitted to said appraisers, one to be selected by each of the parties. Plaintiff nominated and selected as one of the appraisers one Dora C. Nafius, a resident of Floyd county, Indiana, a competent and disinterested person in said matter; and the defendant, by and through its said adjusting agent, nominated and selected one Lynn B. Millikan, a resident of Indianapolis, Indiana, at that time an entire stranger to the plaintiff, and a person whose relations and connections with the defendant were wholly unknown to the plaintiff at the time he was so nominated by it. It appears that the defendant fraudulently represented to the plaintiff that said Millikan was a competent and disinterested person in the said matter in issue, but it is shown that these representations were false and untrue, for in fact he was one of the defendant's employes and in its service at the time he was so nominated and selected as an appraiser. During the arbitration of the matter in dispute it appears that he acted as the disbursing agent of the defendant in paying the expenses of the arbitration, and at all times during said appraisement he acted under the advice and the directions of the defendant, and acted entirely in its interest, with the purpose of procuring the appraisement of the loss in controversy at an amount less than one-half of that which the plaintiff had actually sustained on account of the fire. At the time of the selection of the appraisers as aforesaid the defendant insisted that the plaintiff, in advance, should agree with it in respect to a selection of an umpire who was to act in the event the two appraisers selected were unable to agree upon the amount of loss sustained; and in order and for the purpose of inducing the plaintiff to agree to the selection of one Charles S. Keller, nominated by the defendant as such umpire, it represented that said Keller was a competent, impartial, and disinterested person in respect to the matter in controversy, and that he was qualified to act therein and decide impartially between the parties in regard to the loss sustained. Keller at the time he was selected was a resident of the city of Louisville, of the state of Kentucky, and was unknown to either the plaintiff or Nafius, the appraiser selected by the plaintiff; and the latter, relying upon and reposing confidence in the aforesaid statements and representations made by the defendant in regard to said Keller, agreed to his selection as umpire, and also advised Nafius, the said appraiser, to agree that Keller might be selected as umpire. The two appraisers, together with Keller, after he had been selected as the umpire, were each duly sworn faithfully and impartially to discharge their duties in the matter of making an appraisement of the loss sustained, and after being so qualified they entered upon the work of making an appraisement; but it appears that said appraisers were unable to agree in regard to the loss sustained by the plaintiff, for the sole reason that Millikan would only agree to appraise the damages to the building at an amount less than one-half of the damages actually sustained by the plaintiff. Upon their disagreement the umpire Keller acted in the matter in connection with said Millikan--as is shown, wholly in the interest of the defendant--and, for the purpose of defrauding the plaintiff in the appraisement of his loss, appraised and fixed the same at $ 461.80 in full of the loss sustained by him. When this amount was agreed to by Keller and Millikan, Nafius did not believe that it represented a fair appraisement, but, on the contrary, believed that an amount at least equal to the double of that found by Millikan and Keller should be awarded. Thereupon it...
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