Phœnix Ins. Co. v. Stark

• Decision Date: 29 October 1889
• Parties: Phœnix Ins. Co. v. Stark.
• Court: Indiana Supreme Court

120 Ind. 444

22 N.E. 413

Phœnix Ins. Co.

v.Stark.

Supreme Court of Indiana.

Oct. 29, 1889.

Appeal from circuit court, Vigo county; William Mack, Judge.

Action by Thomas Stark against the Phoenix Insurance Company of Brooklyn, N. Y., upon a policy of insurance. There was a judgment for plaintiff, and defendant appeals.

J. McCabe & Sons and H. B. Jones, for appellant. H. C. Nevitt, B. F. Havens, and Davis & Davis, for appellee.

Coffey, J.

This was an action in the usual form, on a policy of insurance executed by the appellant to the appellee, insuring him against loss by fire on his dwelling-house, and the household goods therein contained. The appellant answered in five paragraphs; the first being a general denial. The second avers that the policy was issued upon a written application made by the appellee, and taken by a special agent with limited powers to take and forward applications for insurance only, and that in said application the appellee represented and warranted that there was no incumbrance on the land upon which said dwelling-house was situated, whereas in truth and in fact there was then and there a mortgage for the sum of $1,400 to R. H. Cochran, which was a valid subsisting lien upon said land; by reason of which, said policy of insurance is void. The third paragraph avers that the policy in suit was issued upon the faith of a written application made by the appellee, taken by the agent mentioned in the second paragraph of the answer, and that in said application the appellee represented and warranted that the land whereon said dwelling-house was situated was of the value of $50 per acre, whereas in truth and in fact said land was worth the sum of $35 per acre, and no more; by reason of which, said policy is void. The fourth paragraph of the answer avers that the policy of insurance in suit was issued upon a written application made therefor by the appellee, taken by the agent named in the second paragraph of the answer, and that in said application the appellee represented and warranted that the said house was only four years old, whereas in truth and in fact said house was eight years old; by reason of which, said policy of insurance is void. The fifth paragraph is the same as the others, so far as it relates to taking the written application for the policy, and avers that in said application the appellee represented and warranted that said house was then of the cash value of $1,200, whereas in truth and in fact it was of the value of $800, and no more; by reason of which, the policy in suit is void. The appellees replied to these several answers in two paragraphs; the first being a general denial. The second paragraph is in the nature of a special non est factum to the application set out with the answers, and avers, in substance, that said application was brought to the appellee by one T. W. Howard, the agent of the appellant, in the form of a printed blank, who read the same over to the appellee; that he answered the questions therein contained, truly and correctly, the said agent undertaking and promising to write the said answers correctly, and undertook to fill out said application; that he answered that said house was, in his judgment, worth about $800, and that the same was about eight years old; that the real estate upon which said house was situated was incumbered by a mortgage to the amount of $1,400, and that said land was, in his judgment, of the value of $ ------ per acre, and that said agent then and there informed the appellee that it was wholly unnecessary to answer said questions, and then and there left the blanks for the answers to said questions wholly unfilled and blank; that the appellee, being wholly ignorant of such business, relied upon the statements of said agent, and did not require said blanks to be filled; that he had no knowledge of any limitation on the power of said agent, and that said application was so blank when he signed and delivered the same to said agent; that he never afterwards authorized any one for him to fill said blanks with the words which appear therein, or in any other manner; that said answers have been written therein since he...