Manchester Fire Assur. Co. v. Koerner

• Decision Date: 05 June 1895
• Citation: 13 Ind.App. 372,40 N.E. 1110
• Parties: MANCHESTER FIRE ASSUR. CO. v. KOERNER et al.
• Court: Indiana Appellate Court

13 Ind.App. 372

40 N.E. 1110

MANCHESTER FIRE ASSUR. CO.

v.KOERNER et al.¹

Appellate Court of Indiana.

June 5, 1895.

Appeal from circuit court, Washington county; S. B. Voyles, Judge.

Action by William Koerner and another against the Manchester Fire Assurance Company to recover on a policy of insurance. From a judgment for plaintiffs, defendant appeals. Affirmed.

Chambers, Pickens & Moores, for appellant. R. J. Tracewell and Elliott & Hostetter, for appellees.

LOTZ, J.

This action was brought by the appellees William Koerner and Frank Zimmer on a policy of fire insurance issued by the appellant. It is the same policy upon which suit was instituted in the case of Assurance Co. v. Glenn (decided by this court at this term) 40 N. E. 926. It is averred in the complaint that the plaintiffs were the owners of a building situate on a certain lot in the town of Bird's Eye; that Frank Zimmer, one of the plaintiffs, was the sole owner of a stock of merchandise and fixtures contained in the building; that an agent of the company prepared and countersigned the policy, and that, at the time he did so, he had full knowledge of the facts that Koerner & Zimmer owned the building, and that Frank Zimmer was the sole owner of the stock of merchandise and fixtures; that the policy insured Koerner & Zimmer in the sum of $300 against damage by fire on their building, and Frank Zimmer in the sum of $700 on the stock of merchandise and fixtures; that Frank Zimmer subsequently assigned his interest in the policy, so far as the same affected the stock of merchandise and fixtures, to one James E. Glenn; that, by mistake, the assignment was made to include all the interest of Zimmer in the policy, when the intention was to include only his interest in the stock and fixtures; that the policy was issued on the 11th day of September, 1892, and continued for the period of one year; that on the 20th day of August, 1893, the building was totally destroyed by fire. It is averred generally that the plaintiffs complied with all the conditions of the policy on their part. Following this general averment, it is alleged that immediately after the fire, on the 21st day of August, 1893, the plaintiffs notified the company of their loss on the building, and that the company, on the 23d day of August following, sent its adjusting agent to the scene of the fire, and that said adjusting agent proceeded to examine into the facts, circumstances, and incidents of said loss, and then and there attempted to agree with plaintiffs as to the value of the building and the plaintiffs' loss occasioned by its destruction, that plaintiffs and defendant were unable to agree as to the value of the building or the loss occasioned by its destruction; that, at the suggestion of the defendant, the value and loss were submitted to arbitration, the plaintiffs selecting one arbitrator and the defendant one; that the arbitrators met, and took and held the matters to be arbitrated under consideration until the ----- day of -----, 1893; that on the ----- day of October, 1893, the arbitrators having failed to agree or make any award in the premises, the adjusting agent of the defendant agreed and promised to pay plaintiffs because of their loss the sum of $251.71, adjusting their loss at the sum of $1,700, said first sum being the pro rata part due plaintiffs on the policy in suit on the basis of $1,700; that afterwards, on the ----- day of December, 1893, the defendant sent the plaintiffs (blank) proof of said loss for them to make, with said sum of $1,700, being filled in said (blank) proof of loss, as the amount of plaintiffs' loss because of the destruction of their building, and that plaintiffs did on the ----- day of December, 1893, make due proof of their said loss, using therefor the (blank) form so sent them, and mailed the same to the company, and that such proof is now in its possession; that the building was owned by the plaintiffs at the time of the fire, and was of the value of $3,000. James E. Glenn was made a party defendant to answer as to any interest he might have in the policy. A copy of the policy, with the written assignment indorsed thereon, was made an exhibit to the complaint. From the written indorsement it appears that Frank Zimmer, as the owner of the property covered by the policy, assigned it to Glenn. Among the conditions of the policy are the following: “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value. * * * Said ascertainment or estimate shall be made by the insured and this company, and if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of loss have been received by this company, in accordance with the terms of this policy. * * * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. * * * 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...