PhŒnix Ins. Co. v. Rowe

• Decision Date: 31 January 1889
• Citation: 117 Ind. 202,20 N.E. 122
• Parties: PhŒnix Ins. Co. v. Rowe.
• Court: Indiana Supreme Court

117 Ind. 202

20 N.E. 122

PhŒnix Ins. Co.

v.Rowe.

Supreme Court of Indiana.

January 31, 1889.

Appeal from circuit court, Posey county; William Louden, Special Judge.

Action by Charles A. Rowe against the Phœnix Insurance Company. upon a fire insurance policy. Defendant appeals. Rev. St. Ind. 1881, § 363, provides that “the court * * * may, in all proper cases, upon motion, order a bill of particulars of the claim of either party and abstracts of title to be furnished.” By section 364, “where a pleading is founded on a written instrument, or such instrument is therein referred to, * * * such instrument * * * may be read in evidence on the trial of the cause without proving its execution, unless its execution be denied by pleading under oath, or by an affidavit filed with the pleading denying the execution. * * *”

Edson & Wimmer, for appellant. E. M. Spencer and Hovey & Menzies, for appellee.

Mitchell, J.

This was an action by Rowe against the insurance company to recover on a policy of fire insurance alleged to have been executed on the 26th day of September, 1884, covering a dwelling-house and certain personal property therein, in which it is alleged the plaintiff, from the date of the risk until its destruction by fire, on April 4, 1885, had an insurable interest, as the owner thereof, to its full value. There was a second paragraph of complaint which counted upon a parol contract of insurance, but it is not materialthat this paragraph should be noticed further. It is contended that the ownership of the property is not sufficiently alleged in the complaint, especially because there is a stipulation in the policy, a copy of which is set out as an exhibit, to the effect that if the “insured shall not be the sole and unconditional owner in fee of said property, * * * then this policy shall be void.” There is no merit in the objection. One who has an insurable interest in property as owner to the full extent of its value is presumably the sole and unconditional owner. A general averment that the plaintiff, at the inception of the policy, and at the time of the loss, was the owner of the property destroyed, is sufficient to admit evidence of any interest he may have had without further averment. Insurance Co. v. Johnson, 46 Ind. 315.

There was no error prejudicial to the substantial rights of the appellant in the ruling of the court in overruling the motion to make the averments in the complaint more specific in respect to the ownership of the property. We can conceive of no good reason why a plaintiff in such a case should be required to set out his title or interest in the property destroyed specifically and with great particularity, nor do we see any reason why he should be required to furnish an abstract of his title in pursuance of the provisions of section 363, Rev. St. 1881, as was insisted upon by a motion for that purpose in the present case. While the granting or refusing such motions is not matter wholly within the discretion of the nisi prius courts, it is nevertheless so far discretionary that a reversal would not follow,...