Nat'l Live Stock Ins. Co. v. Wolfe

• Decision Date: 08 October 1914
• Docket Number: No. 8342.,8342.
• Citation: 59 Ind.App. 418,106 N.E. 390
• Parties: NATIONAL LIVE STOCK INS. CO. v. WOLFE.
• Court: Indiana Appellate Court

59 Ind.App. 418

106 N.E. 390

NATIONAL LIVE STOCK INS. CO.

v.WOLFE.

No. 8342.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1914.

Appeal from Circuit Court, Daviess County; James W. Ogdon, Judge.

Action by Harry M. Wolfe against the National Live Stock Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The policy sued on contained the following provisions:

5. Proceedings in case of loss by death-Notice and proof.-In case of loss by death under this policy, the assured shall forthwith give notice thereof in writing to the company, at its home office, stating in such notice: (1) The number of policy and name of animal; (2) date and cause of death; (3) name of attending veterinary, and his address-and shall, at the request of the company, or its agent, at any time within sixty days after the date of such loss consent to an appraisement by appraisers, one appraiser to be selected by the company and one by the assured, they to select the third if they cannot agree, and shall give, under oath upon blanks to be furnished by this company within three days after the receipt thereof such other information relating to the loss as the company may require. This appraisement shall be solely for the information of the company.

8. Amount of insurance.-This insurance hereby granted is limited to two-thirds the actual cash value of each animal hereby insured, and the aggregate amount insured on each animal in this and all other companies shall not exceed two-thirds its actual cash value. It is hereby agreed that in case of loss under this policy, should the insurance herein named be greater than two-thirds the market value as ascertained when appraised at time of death, that the insured will accept the two-thirds value and the return of all excess premium in full satisfaction of the company's liability under this policy. And it is expressly agreed that in the event that the ascertained cash value shall be less than the estimated value of the animal or animals insured, as contained in the application on which this policy is issued, the liability of this company shall be only for such sum as shall bear the same ratio to the amount of insurance named in this policy as the ascertained cash value shall bear to such estimated cash value, but in no event for a greater amount than that named herein. All fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claims on this company under the policy.

M. S. Meyberg, of Indianapolis, and J. H. Spencer, of Washington, Ind., for appellant. Gardiner Tharp & Gardiner, and Padgett & Padgett, all of Washington, Ind., for appellee.

SHEA, J.

Action by appellee to recover on a policy of insurance issued by appellant on the life of a bull, of which appellee claimed to be the owner. Appellee's complaint alleged, in substance, that appellant was a corporation engaged in the live stock insurance business, with its principal office in the city of Indianapolis, Ind., and an agency in the city of Washington, Ind., in charge of its agents Stewart A. Ridgway and Enoch Chattin; that on August 3, 1911 appellant, by policy made a part of the complaint by exhibit, insured appellee against loss by death or theft of a certain bull, in the sum of $500, said animal being worth $1,000 at the time of his death; that on October 14, 1911, and during the lifetime of the policy, said bull died of disease, due notice of which fact was given appellant by appellee in writing, a copy of which is made a part of the complaint by exhibit, but that before service of said notice on October 16, 1911, appellant, “having theretofore received notice through its agents of the death of said bull, waived the notice required by the terms of said policy,” and without waiting for final proof of said loss proceeded to investigate the facts surrounding the death of said bull, and appellee's claim under the policy, rejected the claim, denied liability under the policy, and refused to pay same; that appellee paid appellant a premium of $40 and performed all agreements and conditions incumbent upon him by the terms of said policy; that he has demanded payment of the amount of the policy, but appellant has refused and rejected said demand and claim, although it took cognizance of said notice of the death of the bull, and investigated same and negotiated with appellee relative to the payment of said policy.

Appellant filed a plea in abatement, which alleged substantially the following facts: That the contract and claim sued upon was not due at the time of the beginning of the cause of action; that the contract of insurance provided that it would insure appellee against loss by death of a bull in a certain sum, “to be paid 60 days after proof of the same has been made by the assured and received by the company”; that the bull died on October 14, 1911, and appellant furnished appellee a blank proof of loss on October 16, 1911, which appellee on that day filled out and submitted to appellant; that appellee filed this suit on November 9, 1911, less than 60 days from the time proof of loss was submitted to appellant, and that it is less than 60 days from the time the animal died; that the cause of action was prematurely brought, and the contract and claim sued on was not due at the time of the bringing of this cause of action.

The court sustained appellee's demurrer to appellant's plea in abatement, also overruled its demurrer to the complaint, and appellant then filed an answer in six paragraphs, the first a general denial. A trial of the issues formed resulted in a verdict and judgment for appellee for the amount of the policy, $500.

The errors relied on for reversal are the sustaining of appellee's demurrer to appellant's plea in abatement and the overruling of appellant's demurrer to the complaint and its motion for a new trial. It is stated in point 4 of appellee's brief that the plea in abatement did not controvert the averments of the complaint, nor obviate facts which might be set up by special answer, that the company had waived the 60-day clause contained in the policy by denying liability which might be pleaded in reply to the answer in abatement, and that the plea in abatement was therefore not sufficient.

[1] It is true, in policies such as the one being considered, containing a 60-day clause such as this one, that the company may waive its rights. For instance, if the insurer undertakes an investigation of its liability, and then rejects the claim and denies liability, the 60-day clause may be deemed to be waived, and an action may be brought at once. Germania Fire Insurance Co. v. Pitcher, 160 Ind. 202, 64 N. E. 921, 66 N. E. 1003;Home Insurance Co. v. Marple, 1 Ind. App. 411, 27 N. E. 633;Whitten v. New England Live Stock Ins. Co., 165 Mass. 343, 43 N. E. 121. In the case of Ohio Oil Co. v. Griest, 30 Ind. App. 84, at page 87, 65 N. E. 534, at page 535, the court use this language:

“It has often been held by the courts of appeal in this state that a plea in abatement must be certain in intent in every particular; that it requires the utmost fullness, certainty, and particularity of statement,...