Mfrs' Mut. Fire Ins. Co. v. Swaney

• Decision Date: 13 May 1913
• Docket Number: No. 7,912.,7,912.
• Citation: 101 N.E. 843,53 Ind.App. 429
• Parties: MANUFACTURERS' MUT. FIRE INS. CO. v. SWANEY et al.
• Court: Indiana Appellate Court

53 Ind.App. 429

101 N.E. 843

MANUFACTURERS' MUT. FIRE INS. CO.

v.SWANEY et al.

No. 7,912.

Appellate Court of Indiana, Division No. 2.

May 13, 1913.

Appeal from Circuit Court, Monroe County; Jas. B. Wilson, Judge.

Action by Laura A. Swaney against the Manufacturers' Mutual Fire Insurance Company and Elva Pafford, in which defendant Pafford filed a cross-complaint against the Insurance Company. From a judgment for Elva Pafford against the Insurance Company and establishing the rights of plaintiff in the recovery, the insurance company appeals. Affirmed.Ulric Z. Wiley, of Indianapolis, and Arthur H. Jones, of Anderson, for appellant. Batman Miller & Blair and Miers & Corr, all of Bloomington, for appellees.

IBACH, C. J.

This was an action by appellee Swaney to be subrogated to the rights of appellee Pafford to the extent of $500 in an insurance policy issued by appellant to Pafford, she having paid off a mortgage on the insured properly, and demanding judgment against appellee Pafford and appellant. Mrs. Swaney had been the owner of the mortgaged property, and had sold it to Pafford, who assumed the mortgage and promised to assign the insurance policy to Mrs. Swaney, or the holder of the mortgage, in order to secure her. When the mortgage became due Pafford refused to pay it, and Mrs. Swaney, in order to prevent being sued on the mortgage, paid it off, relying upon Pafford's statement that he had assigned an interest of $400 in the policy to the owner of the mortgage debt. Pafford by way of cross-complaint sought to recover against appellant on the same insurance policy, alleging the total destruction by fire of the property insured, and that he was entitled to recover the full amount of the policy, $1,000. A verdict was returned by the jury in favor of appellee Swaney against appellant. Appellee Swaney remitted the verdict against appellant. Judgment was rendered that Pafford recover from appellant $1,000 and his costs and charges in and about his cross-complaint expended; that Mrs. Swaney recover of Pafford $400 and her costs in the action, and it was “further ordered and adjudged and decreed by the court that said plaintiff be, and she is hereby, subrogated to the right of said Elva Pafford in the judgment rendered in his favor herein against the Manufacturers' Mutual Fire Insurance Company for $1,000, to the amount of $400 thereof, and $400 of said judgment shall be, and hereby is, declared to be for the use and benefit of the plaintiff, and is hereby declared to belong to plaintiff, and upon the payment of said $1,000 by said defendant insurance company to the clerk of this court said plaintiff is hereby authorized to receipt for $400 of the same and enter satisfaction thereof for said $400, which shall be a full satisfaction and discharge of said judgment to that extent.”

[1][2] Appellant has made certain objections to appellee Swaney's complaint and supplemental complaint. These objections are unavailing, for no judgment was rendered in favor of appellee Swaney against appellant, and consequently, if there was any error in the proceedings between her and Pafford, appellant was not harmed, and could not complain. Appellant cannot complain of the remitting of the verdict against it. Kelley v. Kelley, 8 Ind. App. 606, 34 N. E. 1009, 36 N. E. 165.

[3] No demurrer was filed in Pafford's cross-complaint, but appellant has assigned as error that it does not state facts sufficient to constitute a cause of action against appellant. The allegation of the performance of the conditions of the contract by Pafford is in the following words: “That on March 20, 1909, this defendant gave the defendant company due notice of proof of said fire and also he has duly performed on his part all the conditions required by said policy of insurance.” Appellant contends that this averment is merely that he gave notice of having performed the conditions of the policy, and that it does not state that he did perform such conditions. This contention, which depends mainly upon the fact that there is no comma between the words “fire” and “and,” is hypercritical, is not a reasonable construction of the averments of the pleading, and would do violence to the grammatical construction of the sentence.

[4][5] It is averred in the cross-complaint that Pafford on February 1, 1909, was the owner of certain real estate situated in Monroe county, Ind., on which was situated a steam flour mill, and in which was situated certain mill machinery, of all of which he was the owner; that on said day, in consideration of the sum of $45 paid by Pafford to the defendant insurance company as a premium, it executed and delivered to him a policy of insurance on all of said property for $1,000; that on February 18, 1909, the said mill building, machinery therein and connected therewith, as described in said policy, was burned and wholly destroyed by fire. Thus it will be apparent that this pleading does not directly aver that Pafford was the owner of the property at the time of the fire, but only that he was the owner when it was insured, some 18 days before the fire. Appellant urges that it is absolutely essential to the sufficiency of a pleading predicated upon an insurance policy seeking to recover damages by reason of loss by fire to allege that the pleader...