Ohio Farmers' Ins. Co. v. Vogel
| Citation | 65 N.E. 1056,30 Ind.App. 281 |
| Parties | OHIO FARMERS' INS. CO. v. VOGEL. |
| Decision Date | 13 January 1903 |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Jackson county; Thomas B. Buskirk, Judge.
Action by H. Vogel against the Ohio Farmers' Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Guilford A. Deitch, Seba A. Barnes, and Robt. J. Brennen, for appellant. O. H. Montgomery and W. T. Branaman, for appellee.
Appellee sued appellant upon an insurance policy to recover damages for a loss sustained by fire. The complaint was cast in two paragraphs, to each of which a demurrer was addressed and overruled. Appellant answered in nine paragraphs, and appellee replied by general denial, and also setting up affirmative matter. To the second paragraph of reply the appellant demurred, which demurrer was overruled. Trial by jury. Verdict and judgment for appellee.
Appellant relies for a reversal upon the overruling of its demurrer to the first and second paragraphs of complaint and the second paragraph of reply and overruling its motion for a new trial. The objection urged to the first paragraph of complaint is that it does not aver ownership of the property in appellee, or an insurable interest therein, either at the time the policy was issued nor when it was destroyed. If the complaint is wanting in these averments, it does not state a cause of action, and is bad. A complaint of this character must contain averments showing that the plaintiff had an insurable interest in the property both at the time of issuing the policy and at the time of its destruction. Insurance Co. v. Kittles, 81 Ind. 96;Insurance Co. v. Duke, 75 Ind. 535;Insurance Co. v. Johnson, 46 Ind. 315;Assurance Co. v. McCarty, 18 Ind. App. 449, 48 N. E. 265;Insurance Co. v. Burris, 23 Ind. App. 507, 55 N. E. 773;Assurance Co. v. Koontz, 17 Ind. App. 54, 46 N. E. 95;Insurance Co. v. Coombs, 19 Ind. App. 331, 49 N. E. 471;Vernon Ins. & Trust Co. v. Bank of Toronto (Ind. App.) 65 N. E. 23. There is evidently a clerical error in the first paragraph of the complaint, for its first sentence is as follows: “The plaintiff *** complains of the defendant, *** and says that on the 6th day of December, 1899, of one dwelling house, No. 1, situate in Jackson county, Indiana; that said defendant on said day, in consideration of the sum of $5.50 paid by the plaintiff to the defendant as premium, executed and delivered to plaintiff a policy of insurance,” etc. The words “was the owner,” to make the averment complete, are omitted. The omission of these words from the complaint is not fatal. If the matter had been called to the attention of the trial court at any time before final judgment, even after the return of the verdict, and appellee had asked for leave to amend by writing them, it would have been granted, and appellant would not have been prejudiced thereby. Under the rule in this state, where it is apparent that the pleading is at fault by reason of a clerical error, such as appears here, the same should be disregarded, and, where the pleading could have been cured by an amendment in the trial court, the appellate court will regard such amendment as having been made. Gable v. Seiben, 137 Ind. 155, 36 N. E. 844;Ross v. Banta, 140 Ind. 120, 34 N. E. 865, 39 N. E. 732;Fry v. Colborn, 17 Ind. App. 96, 46 N. E. 351;Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. App. 93, 46 N. E. 479;Railway Co. v. Steele, 6 Ind. App. 183, 33 N. E. 236;Kohli v. Hall, 141 Ind. 411, 40 N. E. 1060;Praigg v. Paving Co., 143 Ind. 358, 42 N. E. 750;Board v. Lomax, 5 Ind. App. 567, 32 N. E. 800. But there is a more serious objection to the first paragraph of the complaint. It is averred that the house upon which the policy was issued was totally destroyed by fire on the - day of April, 1900, whereby appellee was damaged in the sum of $300. There is no averment that appellee was the owner of the property at the time of the loss, or that he had an insurable interest therein. Considering the complaint as showing that appellee was the owner of the property at the time the policy was issued, and had an insurable interest therein, which can only be done by disregarding the clerical error, there are no additional averments constituting a strong enough presumption that he continued to have such insurable interest at the date of the loss. His ownership or insurable interest at the time of loss is an essential fact to his recovery and must be pleaded. The averments in this paragraph are identical, in legal contemplation, to those in the case of Insurance Co. v. Burris, 23 Ind. App. 507, 55 N. E. 773, and it was there held that the complaint was fatally defective. The list of authorities above cited are conclusive against appellee as to the sufficiency of the first paragraph of the complaint.
Appellee's counsel have not contended with any degree of earnestness that the first paragraph of complaint is good, but urge that the question of its sufficiency, as raised by the demurrer, is not available, for the reason that the record shows demurrers to each paragraph of the complaint, and shows that they...
To continue reading
Request your trial