Nat'l Fire Ins. Co. v. Gellman

• Citation: 144 N.E. 154,83 Ind.App. 219
• Decision Date: 23 May 1924
• Docket Number: No. 11770.,11770.
• Parties: NATIONAL FIRE INS. CO. v. GELLMAN.
• Court: Court of Appeals of Indiana

83 Ind.App. 219

144 N.E. 154

NATIONAL FIRE INS. CO.

v.GELLMAN.

No. 11770.^*

Appellate Court of Indiana, Division No. 1.

May 23, 1924.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by Max B. Gellman against the National Fire Insurance Company and another. Judgment for plaintiff against defendant named, and it appeals. Affirmed.Burke G. Slaymaker, of Indianapolis, for appellant.

Emsley W. Johnson, Wm. F. Elliott, and Byron K. Elliott, all of Indianapolis, for appellee.

BATMAN, J.

This is an action by appellee against appellant and its agent, George H. Moore & Co., on an insurance contract. The complaint is in a single paragraph, and alleges in substance, among other things, that on January 1, 1921, appellant issued to the Mercantile Discount Corporation a general or open policy of insurance, No. A 125615, by which it was insured for one year against loss or damage from fire and lightning to automobiles, in which it had an interest by reason of an indebtedness; that by the terms of said policy appellant agreed to issue to the owners or purchasers of automobiles, in which said corporation had such interest, certificates which would entitle them to share in the amount for which appellant would be liable under said policy, in the event of loss to the automobiles covered by the certificates issued to them; that appellee was indebted to said Discount Corporation in a sum which gave him the right to insure under the terms of said general policy; that in compliance with the same appellant, for a valuable consideration, issued to appellee a certificate of insurance upon one Pan American touring car, owned by him, insuring the same against loss by fire in the sum of $2,000; that on July 15, 1921, while appellee was still the owner of said automobile, and said insurance was in full force and effect, the automobile so insured was wholly destroyed by fire; that immediately thereafter appellee gave notice of such loss and of the time, place, and circumstances thereof to appellant and its authorized agent. Other facts are alleged which relate to the details of such notice and to appellee's failure to make proof of loss within the time specified in the policy. Copies of the policy and certificate mentioned in the complaint were marked Exhibits A and B, respectively, and made parts thereof. Said policy contains, among others, the following provisions:

“It is a condition of this agreement that the assured will declare for insurance under this policy every car sold by them on which there is either a mortgage interest or any indebtedness of any amount whatever due them so far as it shall be in their power to control his insurance. Any declaration so made shall be considered as a binder under this contract, pending the issue of a certificate to evidence the transaction. All certificates are to insure for the joint benefit of the assured and the purchasers of the car, as their interest may appear, and in the event of loss are made payable: First to the assured, as interest may appear, and balance, if any, to the purchaser.

“In the event of loss or damage the insured shall forthwith give notice thereof in writing to this company or the authorized agent who issued this policy, and shall protect the property from further loss or damage; and within sixty days thereafter, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and cause of the loss or damage, the interest of the insured, and all others in the property. *** It is a condition of this policy that failure on the part of the insured to render such sworn statement of loss to the company within sixty days of the date of loss (unless such time is extended in writing by the company) shall render such claim null and void.”

Said certificate, omitting signature, is as follows:

“This certifies that Max Gellman *** has insurance under open policy No. A 125615 to the amount of $2,000 (here follows length of time and description of automobile), subject to all the stipulations and conditions of the open policy referred to above. This company has issued an automobile policy insuring *** for the benefit of the holders and indorsers of automobile purchase notes, and of approved purchasers of automobiles, as described above, sold on deferred payment plans, against loss or damage by fire. *** This certificate is issued in duplicate to said Mercantile Discount Corporation, the original as collateral to the open policy, and the duplicate to the purchaser named above, as evidence that the purchaser is buying an automobile on time or conditional sale contract; *** it being understood and agreed that said policy protects the interest of such purchaser to the extent of the difference between the sum insured as stated above, and the amount of the interest in the automobile (at the time of occurrence of any loss or damage covered by this policy) of Mercantile Discount Corporation or its assigns, as holders of unpaid purchase notes, or the interest of any indorser in due course of said notes.”

Appellant filed a demurrer to the complaint on the following grounds: (1) It does not state facts sufficient to constitute a cause of action; (2) there is a defect of parties plaintiff, in this, that the Mercantile Discount Corporation, mentioned in the complaint, and in Exhibit A filed therewith, is a necessary party plaintiff. This demurrer was overruled. Appellant thereupon filed an answer in two paragraphs; the first being a general denial. The second alleges, in substance, that when said fire loss occurred, the Mercantile Discount Corporation, being then and at the time of the commencement of this action the insured named in Exhibit A filed with the complaint herein, had a lien on the automobile described therein for the sum of $1,185.43, which was the balance of the purchase price thereof due and owing from appellee at the time of the fire and loss mentioned in the complaint and when this action was commenced; that the contract sued on was executed by appellant to appellee and said Discount Corporation to insure them against loss by fire to said automobile to the extent, severally, of the interests of appellee and said Discount Corporation; that said automobile was purchased by appellee from the Indianapolis Schacht Truck Company on or about April 1, 1921, under a written contract, whereby title to said automobile was reserved in the seller or its assigns, until after the full purchase price thereof was paid; that said contract was thereafter duly assigned to said Discount Corporation with the consent of appellee; that when appellee purchased said automobile he gave his note to said truck company in the sum of $1,606, as part of the purchase price thereof, which note was also assigned, indorsed, and delivered to said Discount Corporation; that when said fire occurred said contract and note for the purchase of said automobile were both held and owned by said Discount Corporation; and that the amount due thereon at said time, and when this action was commenced, was said sum of $1,185.43. It is then alleged that appellee is not entitled to recover anything whatsoever on account of the aforesaid interest of said Discount Corporation under said policy and certificate of insurance; that said answer is partial, and is addressed to so much of the complaint as seeks to recover the amount of the interest aforesaid of said Discount Corporation. Appellee filed a reply in general denial to this paragraph of answer, and the defendant George H. Moore & Co. filed an answer in general denial to the complaint. The cause was submitted to the court for trial, and on request a special finding of facts was made, and conclusions of law were stated thereon, which were followed by a judgment in favor of appellee against appellant, and in favor of the defendant George H. Moore & Co.

[1] Appellant contends that the complaint on its face disclosed a defect of parties plaintiff, as alleged in its demurrrer thereto, and for that reason the court erred in overruling the same. In determining this contention we must bear in mind the provisions of certain statutes, which, omitting the portions not pertinent to the question under consideration, read as follows:

“Every action must be prosecuted in the name of the real party in interest. *** All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs. *** Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint. ***” Sections 251, 263, 270, Burns' 1914.

In the instant case the complaint disclosed that the contract of insurance, consisting of the policy and certificate mentioned therein, is one in which appellee and the Mercantile Discount Corporation are joint payees, to the extent of the liability for the alleged damage to the automobile in question, conditioned that said Discount Corporation has an interest therein by reason of an indebtedness due it. It is alleged “that appellee was indebted to the Mercantile Discount Corporation in a certain sum of money, which gave him the right to insure under the terms of the general policy of insurance” issued to appellant, and there is no averment that such indebtedness has been paid. Therefore we must presume that such indebtedness existed at the time the automobile was destroyed by fire, as alleged, under the rule that a status once established, or a relationship once shown to exist, is presumed to continue until the contrary appears. Spaulding v. Sones (1894) 11 Ind. App. 562, 39 N. E. 526;Pittsburgh, etc., R. Co. v. Harper (1894) 11 Ind. App. 481, 37 N E. 41;McAfee v....