Insurance Company of North America And Phoenix Insurance Company v. Osborn
| Decision Date | 10 January 1901 |
| Docket Number | 3,339 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA AND PHOENIX INSURANCE COMPANY v. OSBORN |
| Court | Indiana Appellate Court |
From the Fulton Circuit Court.
Affirmed.
C Kellison and H. A. Logan, for appellants.
S Parker, E. C. Martindale and S. N. Stevens, for appellee.
Appellee sued on policies of fire insurance issued by appellants. The actions were separate, but as the questions involved were identical, after the issues were formed the two cases were by agreement of parties consolidated for trial. Separate judgments were rendered against each and each appellant has assigned error. But one transcript has been filed.
It was proper for the court to consolidate the two cases for trial, upon agreement of the parties, and the questions saved may be presented by one transcript. The fact that separate judgments were rendered and separate appeals taken and separate errors assigned does not require a separate certificate of the clerk to the transcript for each defendant below. Elliott's App. Proc. § 197; Roach v. Baker, 145 Ind. 330, 43 N.E. 932.
To each complaint were filed answers each in six paragraphs, the first of which was the general denial. A demurrer to the third, fourth, fifth, and sixth paragraphs was overruled, and sustained to the second paragraph. The second paragraphs of answers are quite long but they plead, in substance, that the policies were obtained by false and fraudulent representations of facts and concealment of facts as to the value of the property made by appellee, who was the agent of the companies when the policies were issued.
By the terms of the policies it is expressly provided that the companies were not liable beyond the actual cash value of the property at the time of the loss. The policies were not valued but were open policies. The companies were liable only for the actual value of the property lost. In such a policy an over-valuation of the property is immaterial. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; Cox v. Aetna Ins. Co., 29 Ind. 586. If such a representation in such a policy is not material to the risk, does not increase the risk in any way, we fail to see any reason for saying that because the insured was at the time the company's agent such representation by him was material.
The sixth paragraph of answer of appellant Phoenix Insurance Company alleges that after the fire the company sent its adjuster to adjust the loss; that he and appellee agreed upon the amount of the loss; that the appellee accepted an order or draft for the agreed amount "drawn by R. C. J. Pendleton, adjuster of Phoenix Insurance Co., of Brooklyn, N. Y., on Eugene Harbeck, general agent of said company at Chicago, Ill., payable to the order of John Osborn, in full of all loss" under the policy sued on "and at the same time and in connection with said adjustment and settlement the plaintiff did in consideration of said settlement and draft or order execute a receipt whereby he acknowledged full satisfaction of all claims whatsoever arising out of the loss and claim sued on, and plaintiff at the same time surrendered the policy of insurance sued on to the defendant and that ever since said time and now retains said order or draft."
Appellee replied to this answer that there was an adjustment of the loss which was found to have been $ 2,600; that immediately thereafter, upon the adjuster's promise to make immediate payment, appellee agreed to accept in full payment of the Phoenix company's liability $ 934.17; thereupon the adjuster delivered appellee a sight-draft on the company and on Eugene Harbeck, general agent, for that sum; that appellee sent this draft to appellant for collection, which it refused to pay, claiming appellee had burned his property; that the draft was protested and returned to appellee, and before any action was brought the company had refused to pay the draft and refused to confirm the adjustment and to pay anything on account of the draft and adjustment, and notified him of such refusal and caused the receipt executed by appellee and the draft to be returned to him; that after the company's refusal to abide by the adjustment and its refusal to pay the draft appellee brought this action.
It is a general rule that where a party has been induced by fraud to part with property, he may rescind the contract, but must first restore or offer to restore anything of value he may have received. But in the case at bar the company rescinded the contract. It refused to pay the draft and denied any liability and gave as its reason that appellee had burned his property. The company itself had in effect said the draft had no value. The company itself rescinded the contract and had done all that could be done to repudiate the contract of settlement before suit was...
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