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

• Decision Date: 27 October 1916
• Docket Number: No. 9121.,9121.
• Citation: 113 N.E. 1024,63 Ind.App. 70
• Parties: NATIONAL LIVE STOCK INS. CO. v. OWENS et al.
• Court: Indiana Appellate Court

63 Ind.App. 70

113 N.E. 1024

NATIONAL LIVE STOCK INS. CO.

v.OWENS et al.

No. 9121.

Appellate Court of Indiana, Division No. 1.

Oct. 27, 1916.

Appeal from Circuit Court, Johnson County; Wm. E. Deupree, Judge.

Action by Walter Owens and another against the National Live Stock Insurance Company. Judgment for plaintiffs, and order overruling motion for new trial, and defendant appeals. Reversed, with instructions.

M. S. Meyberg and L. Ert Slack, both of Indianapolis, for appellant. Elba L. Branigin and Thomas Williams, both of Franklin, for appellees.

McNUTT, J.

This was an action in the court below by appellees against appellant on a live stock insurance policy upon the life of a stallion. Appellant filed its answer in four paragraphs, the first being a general denial. Separate demurrers were filed to the other paragraphs, which were sustained as to the second and fourth and overruled as to the third, to which appellees filed a reply in four paragraphs. There was a trial by a jury and a verdict for appellees. Appellant's motion for a new trial was overruled, and this action of the court, and its action in sustaining said demurrers, are assigned as error in this court.

The only questions presented by appellant's motion for a new trial requires an examination of the evidence. Appellees insist that this is not in the record, because the bill of exceptions containing the evidence was not filed in time.

[1] The record discloses that appellant's motion for a new trial was overruled on the 28th day of May, 1914, and that it was given 60 days to file a bill of exceptions. The record further shows that the bill of exceptions was not presented to the trial judge for settlement and signing until the 8th day of August, 1914, on which day it was signed and filed. Under the statute and the many decisions of this court, we must hold that the bill of exceptions containing the evidence is not a part of the record, and that no question is presented for our consideration under appellant's fourth assignment of error. Section 657, Burns 1914; Hoffman v. Isler, 49 Ind. App. 284-286, 97 N. E. 188, and cases cited; Nichols v. Central Trust Co., 43 Ind. App. 64-66, 86 N. E. 878;Ladoga C. Co. v. Corydon C. Co., 52 Ind. App. 23, 98 N. E. 849-851;Fireman's Fund Co. v. Finkelstein, 164 Ind. 376, 73 N. E. 814;Taylor v. Schradsky, 178 Ind. 217, 97 N. E. 790.

[2] Appellees insist that appellant's first assignment of error, viz., that the court erred in sustaining the demurrers to the second and fourth paragraphs of answer, is waived by appellant's failure to consider said error in its brief, and that the second and third assignments of error are not available because there is not in the record any exception to the court's action in sustaining the separate demurrers to said paragraphs of answer. As will be observed, demurrers to the second and fourth paragraphs of answer were separate and several. The record on the ruling of the court, and the exception by appellant, reads as follows:

“The court, being fully advised in the premises, now sustains the demurrer of the plaintiff to the second and fourth paragraphs of answer, heretofore filed, to which ruling of the court the defendant at the time objects and excepts. And the court, being fully advised in the premises, now overrules the demurrer of the plaintiff to the third paragraph of answer, to which ruling of the court the plaintiff at the time objects and excepts.”

The above ruling of the court was on each of the separate and several demurrers to said paragraphs. The demurrers being separate and several, and the ruling of the court being on each of them, such ruling must be held, in our opinion, to be separate and several. If this is true, then appellant's exception must be held to be separate and several. Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524. The authorities cited by appellees are not in point. They each hold that an assignment of error, which calls in question several rulings of the court, is joint and not several. Appellant has not only assigned as error said rulings jointly, but separately, and we hold that the sufficiency of each of said paragraphs is thereby presented.

[3] Appellees, as heretofore noted, insist that the evidence is not in the record, but they also insist that since the evidence was introduced in support of the paragraphs of answer, to which demurrers were sustained, the sustaining of said demurrers, if error, was harmless.

We were required, under the statute and authorities, to hold that the evidence was not in the record, and, consequently, the evidence is not available for the purposes insisted upon by appellees.

[4] It is next insisted by appellees that even if the second and fourth paragraphs of answer, to which demurrers were sustained, stated facts sufficient to constitute a defense to appellees' complaint, evidence to support such facts was admissible under the general denial. Section 361, Burns 1914, provides: “All defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially.” It has been held repeatedly that the meaning of said section is that every fact which the plaintiff, in the first instance, is under the necessity of proving to sustain his action, or every matter of fact which must or may be alleged in a good complaint, is the proper subject of denial; but that all other matters, that is to say, matters which do not go merely to controvert a fact, or the facts in the complaint, must be set up affirmatively in the answer. 1 Woollen's Trial Procedure, § 2245, and cases cited.

Again, it has been held that the scope of the general denial under the Code is merely to put in issue such of the averments of the complaint as the plaintiff is bound to prove in order to maintain his action. Adams, etc., Co. v. Darnell, 31 Ind. 20, 99 Am. Dec. 582;Baker v. Kistler, 13 Ind. 63.

The above rule has been somewhat changed by statute in personal injury cases. Section 362, Burns, 1914.

Appellant's second paragraph of answer, among other things, alleges that appellees, in their application, on which the policy sued upon was issued, and of which said application was made a part, made a false answer to a question, knowing that such answer was not a fact, and that said appellees warranted said answer to be true, and that appellant relied upon said answer being true and upon said warranty, and was induced thereby to issue said policy; that appellant would not have issued said policy had it known that said answer was false; that, when it learned that said answer was not true, within a reasonable time, it rejected appellees' claim and tendered to appellees the premium which they had paid for said policy, which tender was rejected; and that appellant brought the same into court for appellees' benefit. Said question and answer are as follows:

“Have you in the last two years lost any live stock by death, accident or disease or theft? Answer: No.”

The application upon which the policy in suit was issued was not made a part of appellees' complaint; nor was it necessary to do so; nor was it necessary for the appellees to allege or prove, in the first instance, that the answers in such application were true to entitle them to recover upon the policy. So, under the well-established rules, the matter alleged in said second paragraph of answer was not admissible under the general denial, but was matter of defense requiring a special answer.

In Phœnix Insurance Co. v. Pickel, 119 Ind. 155, 21 N. E. 546, 12 Am. St. Rep. 393, it is decided:

“In an action upon a policy of insurance, the plaintiff need not aver the truth of statements contained in the application, nor the performance or nonperformance of conditions subsequent, nor negative prohibited acts; but it is sufficient for him to show fulfillment of the conditions of recovery, and the burden is then upon the defendant to show a breach of warranties.”

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