Orient Ins. Co. v. Kaptur
| Decision Date | 01 June 1911 |
| Docket Number | 21,882 |
| Citation | 95 N.E. 230,176 Ind. 308 |
| Parties | Orient Insurance Company v. Kaptur |
| Court | Indiana Supreme Court |
Rehearing Denied October 5, 1911.
From Lake Superior Court; V. S. Reiter, Judge.
Action by Magdalena Kaptur against the Orient Insurance Company. From a judgment on a verdict for plaintiff, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
D. J Schuyler, D. J. Schuyler, Jr., and L. L. Bomberger, for appellant.
Appellee sued appellant on a fire insurance policy. There was an answer of general denial. The cause was tried by a jury resulting in a verdict for plaintiff. Defendant filed a motion for a new trial, which was overruled. Judgment for appellee. The errors assigned are the overruling of the motion for a new trial, and that appellee's amended complaint does not state facts sufficient to constitute a cause of action. The latter is waived by failure to present it in the points in appellant's brief. Baltimore, etc., R. Co. v. Evans (1907), 169 Ind. 410, 82 N.E. 773.
Thirteen reasons were assigned in appellant's motion for a new trial. Those not waived will be considered in their order.
Appellant requested the trial court to instruct the jury as follows: "The court instructs the jury that while the law permits a party in interest to testify in his own behalf, nevertheless the jury should, in weighing the evidence of the parties so testifying, and, in determining how much credence is to be given to the same, take into consideration the fact that such party is interested in the matter in controversy in the suit, and in the result of the suit." The court struck out the word "should" from said instruction, and substituted the word "may," and, as thus modified, gave it. Appellant maintains that this was erroneous, under the ruling in the case of Southern R. Co. v. State (1905), 165 Ind. 613, 75 N.E. 272.
Appellee did not testify to any fact controverted by appellant, and, therefore, so far as her testimony was concerned, if erroneous, the instruction was harmless. Appellee's husband, however, testified to some matters about which there was a sharp controversy, and appellant contends that the evidence shows that the husband was acting as the wife's agent and was "a party in interest," that the instruction was applicable to his evidence, and for that reason should have been given. Instructions requested should be succinct and free from ambiguity. The husband was not a party to the record, and was not a real party in interest.
The policy in suit contains the following provision:
"This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss."
Appellant contends that in making the proof of loss, submitted by appellee to appellant after the fire, under the provisions of the policy, appellee was guilty of fraud and false swearing, and thereby forfeited her right to recover. Error is predicated on the court's refusing a number of appellant's requested instructions on this subject. Fraud is never presumed, and in order to entitle a party to relief, either at law or in equity, on that ground, it is necessary that the facts constituting the fraud be distinctly alleged in the pleadings, so that it may be put in issue, and evidence thereon given. Ray v. Baker (1905), 165 Ind. 74, 74 N.E. 619, and cases cited; Bennett v. McIntire (1889), 121 Ind. 231, 6 L. R. A. 736, 23 N.E. 78; 9 Ency. Pl. and Pr. 684.
Appellant's answer consisted solely of a general denial. There was no issue of fraud in the case, and consequently evidence of fraud was not relevant to the issues, and all instructions relating to this subject were correctly refused.
There is a provision in the policy that, in the event of disagreement as to the amount of loss, it shall be ascertained by two disinterested appraisers, and that no action shall be brought unless this requirement has been complied with.
The court instructed the jury that if it found from the evidence that defendant denied liability under the policy, and refused to pay plaintiff for her loss, then it was not necessary for plaintiff to demand or request an...
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