New Hampshire Fire Ins. Co. v. Wall

• Decision Date: 10 October 1905
• Docket Number: No. 5,201.,5,201.
• Parties: NEW HAMPSHIRE FIRE INS. CO. v. WALL.
• Court: Indiana Appellate Court

36 Ind.App. 238

75 N.E. 668

NEW HAMPSHIRE FIRE INS. CO.

v.WALL.

No. 5,201.

Appellate Court of Indiana, Division No. 1.

Oct. 10, 1905.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Henry V. Wall against the New Hampshire Fire Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Smiley N. Chambers, Samuel O. Pickens, Charles W. Moores, Claude Thompson, R. F. Davidson, and Owen Pickens, for appellant. Johnston & Johnston and O. U. Perrin, for appellee.

BLACK, J.

The appellee's complaint consisted of four paragraphs, to each of which the appellant demurred for want of sufficient facts. The demurrer was sustained as to the first two paragraphs, and was overruled as to the third and fourth paragraphs. In the third paragraph it was alleged that the appellant, by its policy of insurance numbered 1,479,429, and dated October 8, 1902, in consideration of $7.50, insured the Crawfordsville Sanitarium against loss or damage by fire to the amount of $300 for the term of one year, commencing on the 8th day of October, 1902, at noon, and ending on the 8th day of October, 1903, at noon, on the surgical instruments, medical books, bookcases, desks, and all other articles used in sanitariums of this kind, while contained in the two-story frame, brick veneered, metal-roof building, situated at Nos. 223 and 225 east Main street, Crawfordsville, Ind., then occupied by said sanitarium, and permitted other insurance thereon; that on the 26th day of December, 1902, the greater portion of said sanitarium property was entirely destroyed by fire, and the remainder thereof burned, injured, and damaged, all to the amount of - dollars, of which the appellant was duly notified on the - day of December, 1902; that said sanitarium property was of the value of $3,671; that the appellee effected other insurance upon said sanitarium property in the sum of $1,700, as permitted by the terms of said policy; that the appellee had performed all the conditions on his part to be performed; that January 7, 1903, the appellant, by its authorized representative, met the appellee in said city, and agreed upon the total amount of loss or damage to said sanitarium property in the sum of $1,496, and “became and is indebted” to him in the sum of $224.59, that being three-twentieths of the whole amount of said loss or damage, and the proportion which $300, insured by said policy, bears to the whole amount of insurance upon said sanitarium property; that the appellee and one Harry J. Helfrich were the owners of said sanitarium property at the time said policy was issued and at the time the same was destroyed and damaged by fire on December 26, 1902; that on the - day of January, 1903, said Helfrich, for a valuable consideration, sold all his claim for loss or damage to said sanitarium property under said policy to the appellee; that March 10, 1903, the appellant, in settlement of said loss and cancellation of said policy, delivered to the appellee, at Crawfordsville, Ind., its draft, dated Manchester, N. H., March 3, 1903, for the sum of $224.54 at sight, payable to the order of Crawfordsville Sanitarium; that thereupon the appellee delivered to the appellant said policy, which is now in its possession and annulled by it; that March 17, 1903, said draft was presented to the appellant at Manchester, N. H., for acceptance, and acceptance thereof demanded and refused, and it was then and there protested for nonacceptance; that March 20, 1903, it was presented to appellant for payment, and payment thereof demanded and refused, and it was then and there protested for nonpayment; that in March, 1903, said draft was returned to appellee, with notices of nonacceptance and nonpayment and of protest therefor; that the appellee is entitled to 5 per cent. damages upon said protested draft, and to exchange and protest damages thereon, and to lawful interest upon the sum of $224.54 from March 20, 1903; that said amount is now due upon said draft and wholly unpaid; and that the appellant, by its neglect and refusal and failure to pay its indebtedness and draft, as alleged, has damaged the appellee in the sum of $224.54, accrued interest thereon, and exchange and protest changes and 5 per cent. damages upon said draft, all of which is now past due and wholly unpaid. Said Harry J. Helfrich was made a party defendant to answer to whatever interest he might have in the premises. Prayer for judgment, etc. The fourth paragraph was like the third, except that it declared upon a draft for a different amount ($374.22), alleged to have been given for loss by the same fire in settlement of another policy of a different number, issued by the appellant November 12, 1902, for $500 on the same property. The two drafts were made exhibits, being alike except as to amounts and as to the numbers of the policies mentioned therein; that declared upon in the third paragraph of complaint being as follows: “224.54. Manchester, N. H., Mar. 3, 1903. At sight pay to the order of Crawfordsville Sanitarium the sum of two hundred and twenty-four and 54/100 dollars, in full for claim under policy No. 1,479,429, issued at Crawfordsville, Ind. Agency, as per receipt attached. F. E. Martin, A. Secy.”

The appellant answered in three paragraphs, the first a general denial, and filed a cross-complaint against the appellee and Helfrich, praying that the drafts be canceled, that the settlement be set aside, and that the policies of insurance be declared void. The appellee replied to the second and third paragraphs of answer, and the appellant and Helfrich answered the cross-complaint by general denial, and Helfrich answered the complaint of the appellee, alleging that he then had no interest in the matters in controversy as therein set out. There was a trial by jury, and a general verdict was returned for the appellee in the sum of $628.11.

The appellant moved “for a new trial herein on the issues joined on the complaint.” This motion having been overruled, the appellant moved in arrest of judgment upon the verdict. Having overruled this motion, the court rendered judgment for the appellee against the appellant for the amount of the verdict and for costs. The court then found and rendered judgment that the appellant take nothing by its action on the cross-complaint, and that the defendants to the cross-complaint recover their costs and charges thereon laid out and expended. The appellant then moved for a new trial on the issues joined on the cross-complaint, assigning the same reasons as those set forth in the former motion for a new trial. This motion having been overruled, the appellant prayed for and was granted an appeal to this court.

Among the alleged errors for which, and for each of which, the appellant prays that “the judgment of the Montgomery circuit court be in all things reversed,” are the rulings upon the two motions for a new trial, which are separately assigned as errors. One of the parties defendant to the cross-complaint, in whose favor judgment was rendered for costs (Helfrich), is not a party to the appeal, and we could not take any action adverse to his interests. It is a rule of practice in this state that a motion in arrest of judgment cuts off the right to move for a new trial, except where the grounds for a new trial are unknown when the motion in arrest is made. Eckert v. Binkley, 134 Ind. 614, 33 N. E. 619, 34 N. E. 441;Cincinnati, etc., R. Co. v. Case, 122 Ind. 310, 23 N. E. 797. The determination of the issues tried together involved a result adverse to the appellant upon the cross-complaint if adverse to it upon the complaint. The cross-complaint, in fact, set forth only defensive matter of alleged fraud in the settlement of the loss.

It has been held that one who desires a new trial must seek it as to the whole case, and that the court cannot grant a new trial as to a part of the case only. Johnson v. McCulloch, 89 Ind. 270. In that case it was held that the overruling of a motion by a defendant for a new trial upon his paragraphs of counterclaim and set-off presented no question for decision on appeal. The court could not properly grant a new trial of the issues formed upon the complaint, and also render judgment for or against the appellant upon the cross-complaint. All the rights of the appellee involved in the case were not included in the issues formed on the complaint. He also was interested in the issues formed on the cross-complaint against him and Helfrich, and his interest in the matter involved in the cross-complaint was so related to or identical with those involved in the issues on the complaint that it would not avail him to try again the issues on the complaint, if the issue formed on the cross-complaint were found and adjudged against him. See Bennett v. Closson, 138 Ind. 542, 548, 38 N. E. 46;State ex rel., etc., v. Templin, 122 Ind. 235, 23 N. E. 697;Bisel v. Tucker, 121 Ind. 249, 23 N. E. 81;Louisville, etc., R. Co. v. Miller, 141 Ind. 533, 37 N. E. 343. The court was not bound to grant a new trial as to a part of the case, and there could be no error in the overruling of either of the two motions for a new trial.

Two sets of interrogatories with answers were returned by the jury. The record represents one set as consisting of interrogatories submitted to the jury “for them to answer.” Immediately following in the record are interrogatories, with answers thereto, purporting to be interrogatories submitted to the jury by the court upon the issues joined upon the cross-complaint. The appellant's motion for judgment in its favor “on the answers to the interrogatories in the above-entitled cause on the issues framed on the complaint herein, notwithstanding the general verdict,”...