Ohio Farmers' Ins. Co. v. Vogel

• Decision Date: 23 February 1905
• Docket Number: No. 5,100.,5,100.
• Citation: 73 N.E. 612
• Parties: OHIO FARMERS' INS. CO. v. VOGEL.
• Court: Indiana Appellate Court

73 N.E. 612

OHIO FARMERS' INS. CO.

v.VOGEL.

No. 5,100.

Appellate Court of Indiana.

Feb. 23, 1905.

Appeal from Circuit Court, Scott County; Willard New, Judge.

Action by Henry Vogel against the Ohio Farmers' Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

See 65 N. E. 1056.

Guilford A. Deitch and Seba A. Barnes, for appellant. W. T. Branaman and O. H. Montgomery, for appellee.

COMSTOCK, C. J.

Suit by appellee against appellant upon a policy of fire insurance. The amended complaint is in two paragraphs. It alleges that plaintiff was on the 6th day of December, 1899, the owner of a dwelling house (describing it), and that on said day, in consideration of the payment by him of $5.50 to the defendant, it issued to him its policy of insurance, which is made a part of the complaint by exhibit; that said property was wholly destroyed by fire on the - day of April, 1900; that at said date he was the owner of the same, and that by reason of said fire he was damaged and sustained the loss of $300; that within 60 days after said fire plaintiff notified defendant of the same, and of his loss, and defendant's agent and adjuster came and looked at the premises and investigated said loss, and thereupon refused payment of the same, and denied all liability under such policy, and thereby waived the written notice and sworn proofs of the loss provided by said policy in case of damage or destruction of the property by fire; and that the plaintiff has performed on his part all the conditions of the said policy of insurance.

In discussing the foregoing averments, the position of the appellant is that appellee having relied upon a waiver of proofs of loss, and having attempted to plead such waiver, the complaint must be tested as though it contained no general allegation of performance. Under our statute (section 373, Burns' Ann. St. 1894; section 370, Horner's Ann. St. 1897) and a number of decisions, it is sufficient, in an action of this character, to aver in general terms the performance upon the part of the insured of all the terms of the policy. A complaint should affirmatively show a performance of the condition upon which the claim is based, or that a performance has been waived. Indiana Ins. Co. v. Pringle, 21 Ind. App. 563, 52 N. E. 821. Eliminating the allegation as to waiver as to proofs of loss, the complaint would undoubtedly be sufficient. It has been held by this court that when the complaint alleges both a performance of the conditions of the policy, and, in addition, states facts showing a waiver of the proofs of loss, the former allegation may be treated as surplusage. American Ins. Co. v. Sisk, 9 Ind. App. 305, 36 N. E. 659.

But it is contended that, as the policy provides that no agent or adjuster of the appellant shall have the right to acknowledge or deny liability, the appellee had no right to accept the denial of liability of such agent or adjuster as the final denial of liability of the appellant. The condition named, like other conditions, may be waived, either by express agreement, or by the conduct of the company. Hanover Fire Ins. Co. v. Dole, 20 Ind. App. 338, 50 N. E. 772;German Ins. Co. v. Sanders, 17 Ind. App. 134, 46 N. E. 535. The averments are that within 60 days from the fire (that is, within the time required by the policy) the insured notified the insurer company of his loss, and that the defendant's agent and adjuster came and looked at the premises, and investigated said loss, and thereupon refused payment of the same, and denied all liability under the said policy. If an insurance company, upon being notified within the proper time of the loss denies liability, such fact will constitute a waiver of proof of loss. Home Ins. Co. v. Sylvester, 25 Ind. App. 207, 57 N. E. 991;German Fire Ins. Co. v. Seibert, 24 Ind. App. 279, 56 N. E. 686;Ft. Wayne Ins. Co. v. Irwin, 23 Ind. App. 53, 54 N. E. 817;Indiana Ins. Co. v. Pringle, 21 Ind. App. 559, 52 N. E. 821:Home Ins. Co. v. Boyd, 19 Ind. App. 173, 49 N. E. 285;Western Ins. Co. v. McCarty, 18 Ind. App. 454, 48 N. E. 265; Ætna Ins. Co. v. Strout, 16 Ind. App. 160, 44 N. E. 934;Germania Fire Ins. Co. v. Stewart, 13 Ind. App. 627, 42 N. E. 286;Milwaukee, etc., Co. v. Stewart, 13 Ind. App. 640, 42 N. E. 290. It has been held in this state that an agent with authority to examine and adjust a loss may orally waive preliminary proofs of loss, notwithstanding a clause contra in the policy. Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N. E. 285. Substantially the same decision has been given in other states. Lamberton v. Conn. Fire Ins. Co., 39 Minn. 129, 39 N. W. 76, 1 L. R. A. 222; Young v. Hartford Ins. Co., 45 Iowa, 377, 24 Am. Rep. 784; Mattocks v. Des Moines Ins. Co., 74 Iowa, 233, 37 N. W. 174;Frane v. Burlington, 87 Iowa, 288, 54 N. W. 237; Viele v. Germania Ins. Co., 26 Iowa, 9, 96 Am. Dec. 83; Maryland F. Ins. v. Gusdorf, 43 Md. 506;Franklin Ins. Co. v. Chicago Ice Co., 36 Md. 102, 11 Am. Rep. 469;Security Ins. Co. v. Fay, 22 Mich. 467, 7 Am. Rep. 670;Wyman v. Phœnix Mut. Ins. Co., 119 N. Y. 274, 23 N. E. 907.

But even if the facts averred were insufficient to show a waiver by the appellant company, it could not have been harmed by the ruling, because, without objection, ample evidence was given to show that the company was given timely notice of the loss by its legal agent, and sent its adjuster within the time fixed by the policy to examine the loss occasioned by the fire, and that he refused payment and denied the liability of the company. This was ample evidence to show a waiver of proof of loss upon the part of the company. The demurrer to the first paragraph of the complaint was correctly overruled.

The questions discussed are common to both paragraphs of the complaint, and further reference to the second is not, therefore, necessary.

The fifth paragraph of answer, addressed to both paragraphs of the complaint, alleges that “this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the buildings insured herein, or any of them, now are or shall hereafter become vacant or unoccupied. The defendant says that after the issuance of said policy the said insured building became vacant and unoccupied, and that the same was vacant and unoccupied at the time of the fire alleged in plaintiff's complaint, which caused the loss herein sued for. The defendant says that said vacancy and unoccupancy were without its knowledge, consent, or agreement, indorsed on said policy or added thereto, or otherwise given and that the defendant was wholly ignorant of the fact that said property was at the time of said fire vacant and unoccupied, and did not learn of said fact until long after said fire.” In said second paragraph of reply to said paragraph of answer the appellee admits that in the policy of insurance issued to him by the defendant, and sued on, there is a stipulation that the same should be void if the buildingsinsured therein were then or thereafter became vacant or unoccupied, or occupied by tenants, and if the hazard be increased by any means within the control and knowledge of the insured, unless otherwise provided by agreement indorsed thereon. He avers that at the time of the issuance of said policy said house was occupied by a tenant, which fact was then fully known by defendant, and the same was insured to be occupied by a tenant, and as a tenant house, and that at the time of making said contract and at all times since it was and has been the general custom of the defendant and of other insurance companies in the community where said house was situated, and where said contract was made, to issue and give assents for insured buildings to be and remain temporarily, for a period not exceeding 30 days at a time, vacant and unoccupied, during changes of tenants, and to attach and indorse upon such a policy such permit upon request therefor by the insured; that the contract was entered into with full knowledge by the parties of such custom, and with reference thereto, and that some cessation of occupancy in such tenant house was then and is necessarily incident to a change of tenants, and insured persons were and are, by law and such custom, entitled to a reasonable time in which to obtain such permit, and to a reasonable time in which to make a change of tenants for such insured house. He says that said house continued to be occupied by said tenant until 5 o'clock p. m. on the day the same was destroyed, with the full knowledge and consent of the defendant, at which time the said tenant, without order or direction from the plaintiff, and without his knowledge or consent, removed therefrom, and four hours thereafter, and before plaintiff had learned of such removal, or had had opportunity or reasonable time to learn or know the same, and while he was wholly ignorant of such fact, and before he had had a reasonable time to make application to defendant for such vacancy permit or to obtain the same, and before he had had reasonable time to obtain another tenant for such house, the same was, without plaintiff's fault or knowledge, destroyed by fire, as alleged in the complaint. And he alleges that the risk or hazard of insurance was not increased by plaintiff at any time or in any manner, or by any means within his control or knowledge.

The consideration of the sufficiency of the second paragraph of reply involves the construction of the vacancy clause of the policy, and the effect of the custom pleaded upon the express terms of the contract. The alleged custom cannot vary the express terms of the contract. Scott v. Hartley, 126 Ind. 239, 25 N. E. 826. It is to be borne in mind, too, that the policy provides for vacancy if consent thereto be indorsed thereon, and that no such consent was requested. The policy provides that the entire policy shall be void “if the buildings insured herein, or any of them, now or shall hereafter become vacant or...