Ohio Farmers' Ins. Co. v. Dobbs, 10299.
| Decision Date | 06 April 1920 |
| Docket Number | No. 10299.,10299. |
| Parties | OHIO FARMERS' INS. CO. v. DOBBS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Owen County; Robert W. Miers, Judge.
Action by James A. Dobbs against the Ohio Farmers' Insurance Company. From judgment for plaintiff, defendant appeals. Reversed, with instructions to grant new trial.Guilford A. Deitch and Frank G. West, both of Indianapolis, and Homer Elliott, of Martinsville, for appellant.
Claude E. Gregg, of Vincennes, Webster V. Moffett, of Bloomfield, Cary L. Harrell, of Jasonville, and Willis Hickam, of Spencer, Hubert Hickam, of Indianapolis, and Willis Hickam, Jr., of Spencer, for appellee.
Action by appellee to recover on a fire insurance policy for a loss sustained.
The complaint in one paragraph in substance alleges the issuance of the policy involved October 1, 1915, insuring against loss by fire in the sum of $700 on the saloon stock, and $500 on the furniture and fixtures. The property was wholly destroyed by fire November 16, 1915. It was owned by appellee and was of the value of $1,600. Immediate notice of the loss was given, and within 60 days thereafter appellee rendered a particular account of the statement of the loss. Appellee had performed all of the conditions of the contract, but appellant refused to join in estimating the loss and refused to pay anything on account of said policy and the loss sustained thereunder. There was a prayer for judgment in the sum of $1,350.
Appellant answered in five paragraphs, the first being a general denial. The second was based upon the provision of the policy that it would be void if the property insured be or become incumbered by chattel mortgage, it being averred in said paragraph that at the time of the issuance of the policy the property was subject to two chattel mortgages. Paragraph 3 was based upon the provision of the policy that the same should be void if the property be incumbered with a chattel mortgage subsequent to the issuance of the policy, and that subsequent to such issuance the property was so incumbered. Paragraph 4 sets up that appellee did not comply with the objections made to the statement of loss by reason of which no recovery was authorized, and paragraph 5 avers that before proof of loss was made the appellee had abandoned all claims under said policy.
There was a reply in denial to the second, third, and fourth paragraphs of answer, and a second paragraph of reply to the second, third, fourth, and fifth paragraphs of answer, which averred that “defendant by and through its duly authorized agent James L. Smith waived each and every provision, condition, and requirement” set forth in said paragraph of answer. A demurrer to this second paragraph of reply was overruled. The cause was tried by a jury and a verdict rendered for appellee in the sum of $1,302.50. After the motion for a new trial was overruled, and judgment rendered upon the verdict, this appeal.
On appellee's motion and affidavit, the venue of the cause was changed from the Green circuit court to the Owen circuit court. Appellee now says on appeal, for the first time, that the transcript on change of venue was not authenticated by a sufficient certificate, and that therefore the pleadings are not properly in the record, and cannot be considered. Appellee appeared in the Owen circuit court, and, without taking any steps to have the certificate, which was defective, corrected, and without making any objection thereto, went to trial, on the pleadings and issues as presented by the transcript.
[1] As the transcript was sufficient for appellee's purpose in the trial court, it will meet our requirements. The objection comes too late. Indianapolis & Transit Co. v. Andis, 33 Ind. App. 625, 72 N. E. 145. The pleadings and issues thereon will be considered.
[2] Appellee next contends that the motion for a new trial presents no question, for the reason that there is no memorandum attached thereto. There is nothing in this contention. Wilson v. Sentman, 121 N. E. 669; Montfort v. Ind., etc., Trac. Co., 126 N. E. 682. Other technical objections to appellant's brief are presented, but with the amendments made after appellee's objections, we hold that the brief shows a good faith effort to comply with the rules of the court, and the appeal will be considered on its merits.
[3] Appellant contends that the averment of the second paragraph of reply that the defendant by and through its duly authorized agent. James L. Smith, waived each and every provision, condition, and requirement set forth therein, while sufficient as an answer that Smith was an agent duly authorized or appointed by defendant, it is not sufficient as an averment that he had either the actual or apparent authority to bind his principal by any supplemental agreement waiving the provisions of the policy.
In the case of Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 601, 100 N. E. 675, 102 N. E. 99, it was held that, in construing the pleading where a demurrer is interposed, it will be deemed sufficient whenever the necessary allegations can be fairly gathered from all the averments, and that all facts will be deemed stated that can be implied from the allegations made by fair and reasonable intendment, and facts so impliedly averred will be given the same force as if directly stated, citing a long list of authorities.
It was held in the case of Webb v. Citizens' National Bank, 115 N. E. 799, that where one Voigt, for and on behalf of one Holzbog, after making inquiry of appellee as to the amount of money due upon a certain note owing by said Holzbog collaterally secured by bonds deposited therewith, thereupon tendered appellee in full payment of the said note, the amount so stated by appellee to be due thereon, and at said time demanded the surrender of said note and bonds to him, said Voigt, as the agent of said Holzbog, such averments were sufficient to show the authority of said Voigt as the agent of Holzbog in making the tender, and demanding such bonds. See, also, Singer, etc., Machine Co. v. Phipps, 49 Ind. App. 116, 120, 94 N. E. 793. Upon the authority of these cases, supported by section 343a, Burns' R. S. 1914, and section 385, Burns' R. S. 1914, we hold that the second paragraph of reply was sufficient as against demurrer. If appellant deemed the pleading defective, its remedy was by motion to make it more specific. Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, 111 N. E. 645.
[4][5][6] The policy covered the “saloon stock” and the “furniture and fixtures,” and appellant complains that appellee was permitted on direct examination to testify to the value of these items in a lump sum. As appellee was fully cross-examined by appellant's counsel as to the value of the separate items composing such stock, and such furniture and fixtures, we do not see that appellant could have been harmed, even if such testimony was erroneous. The proofs of loss were only admissible for the purpose of showing a compliance with the terms of the policy. Metropolitan Life Insurance Co. v. People's Trust Co., 177 Ind. 578, 98 N. E. 513, 41 L. R. A. (N. S.) 285. Had appellant tendered an instruction to this effect, it should have been given; but, failing so to do, it may not complain. Robinson v. Youngblood, 54 Ind. App. 669, 103 N. E. 347. As appellee was fully examined as to the facts stated in the proof, we do not see how appellant was harmed by reading such proof in evidence.
[7][8][9] Appellant offered in evidence a chattel mortgage dated April 13, 1915, and executed by appellee to one Chas. Hartmetz, which, so far as the record shows, had not been released, though appellee testified that the mortgage had been paid off before the policy was written. This left the question of fact as to whether there was a chattel mortgage upon the property insured at the time that the policy was written. It was provided in the policy and averred in the second paragraph of answer that, if the property be or become incumbered by a chattel mortgage,...
To continue reading
Request your trial