Phoenix Ins. Co. of Brooklyn v. Rogers

• Citation: 38 N.E. 865,11 Ind.App. 72
• Parties: PHOENIX INS. CO. OF BROOKLYN v. ROGERS et al.
• Decision Date: 16 November 1894
• Court: Indiana Appellate Court

11 Ind.App. 72

38 N.E. 865

PHOENIX INS. CO. OF BROOKLYN

v.ROGERS et al.

Appellate Court of Indiana.

Nov. 16, 1894.

Appeal from circuit court, Decatur county; J. W. Study, Judge.

Action by Mary J. Rogers and others against the Phoenix Insurance Company of Brooklyn, N. Y., to recover on a policy of fire insurance. Judgment was rendered in favor of plaintiffs, and defendant moved for a new trial. From the judgment overruling the motion for a new trial, defendant appeals. Reversed.

Davis, J., dissenting.

J. McCabe & Son, for appellant. J. S. Scobey and J. A. Miller, for appellees.

REINHARD, J.

This cause was originally appealed to the supreme court. That court, on the 27th day of March, 1893, determined that the jurisdiction of the appeal was in the appellate court, and by an order of that date transferred the cause to our docket. The action is on a fire insurance policy for the alleged loss of a dwelling house.

The first error assigned and discussed is that of the overruling of the appellant's demurrer to the complaint. After averring the execution and delivery of the policy, and the loss, the complaint proceeds as follows: “The plaintiffs, on their part and behalf, performed any and all and singular the conditions and stipulations thereof on their part to be done and performed, respecting said contract, except as hereinafter stated. That within ----- days thereafter, and as soon as known to plaintiffs that said dwelling house had burned and was destroyed by fire, they at once, in writing, notified said defendant, said insurance company, thereof. That upon receipt of said notice by said defendant she caused a pretended inquiry to be made of the premises, and afterwards, on the 26th day of December, 1885, notified the plaintiffsthat she, the defendant, would not pay said sum of seven hundred dollars by her written upon said dwelling house in said policy, or any part thereof. That plaintiffs did not make any proof of said loss for the reason that said defendant waived the same by denying liability because of vacancy at time of loss. * * * Plaintiffs further allege that on and prior to said application of plaintiffs to said defendant for said insurance herein mentioned said defendant had made and promulgated the following rule and condition of insurance by defendant as to and in respect of property by her insured becoming vacant, to wit: ‘Our rule is not to permit vacancy over thirty (30) days at one time,’ instead of and in lieu of the printed condition in said policy, to wit, ‘Or if the above mentioned buildings become vacant or unoccupied,’ ‘this policy shall be null and void.’ And the plaintiffs further allege that at and before the making of said application for said insurance they had full knowledge of said alteration and change in the condition in said printed policy as to vacancy aforesaid, and that said application for said insurance was made, and the consideration therefor paid, upon the faith of said condition in said policy as to vacancy of insured property being as above stated, to wit, ‘Our rule is not to permit vacancy over thirty (30) days at any one time.’ That by the mutual mistake of the parties said printed condition in said policy as to vacancy was left to stand as printed therein, when the same should have been erased, and said condition, to wit, ‘Our rule is not to permit vacancy over thirty (30) days at one time,’ inserted in lieu thereof.” Prayer for judgment on the policy and a reformation. The policy is copied into the complaint in full.

It is urged by appellant's counsel that the complaint is insufficient for three reasons: (1) It fails to show that notice of the loss was given within the time required, or within a reasonable time; (2) it fails to show a waiver of the proof of loss; (3) it fails to state facts sufficient to entitle the appellees to a reformation of the policy. The appellees' counsel contend that the question of the sufficiency of the complaint is res adjudicata, and in support of this contention we are referred to the case of Rogers v. Insurance Co., 121 Ind. 570, 23 N. E. 498; the claim being that this is but a continuation of that case. The opinion in that case was filed, as appears from the statement at the close of the same, on January 16, 1890, and a petition for a rehearing, overruled March 20, 1890, while the complaint in the present case was filed November 7, 1890. It is claimed, however, by appellees' counsel that after the reversal of the former judgment by the supreme court, and the replacing of the cause upon the docket of the trial court, the appellees entered a dismissal, but that the complaint was subsequently refiled, and that no change or amendment was made to the complaint. It must be admitted that where a rule of law has been declared by the appellate tribunal, such rule will be adhered to, not only in all subsequent stages of the same cause of action, but also in any subsequent action between the same parties on the same cause of action, even though such rule be of doubtful correctness. Hawley v. Smith, 45 Ind. 183. But there are two reasons why the doctrine of former adjudication cannot apply to the case in judgment. In the first place, the complaint is not set out in full in the report of the former case, and we cannot, therefore, know whether it is the same as the one in the case at bar. In the next place, the complaint in the other action was not tested by demurrer, and the supreme court might have come to a very different conclusion had a demurrer been filed and overruled. Many defects in a pleading will be cured by the verdict or finding, if objection is not made until after such verdict or finding, while the same defects would render the pleading bad on demurrer. “The availability of objections in a case where a demurrer is interposed in due time and in an appropriate form assumes a very different phase from the one it wears where the objections are made by a motion in arrest, or by a specification in the assignment of errors.” Elliott, App. Proc. § 681. It becomes our duty, therefore, to pass upon the sufficiency of the complaint as tested by the demurrer. Is it subject to any or all of the objections urged to it? We shall consider these objections in the order in which they are presented and hereinbefore stated.

The policy provides that “in case of loss or damage the assured shall forthwith give notice of such loss in writing to the company.” It is not averred in the complaint how many days elapsed after the fire before notice of the loss was given in writing. The averment is “that within ----- days thereafter, and as soon as known to the plaintiffs that said dwelling house had burned,” etc., the notice was given. If exact time is an essential averment, it is manifest that the pleading is totally insufficient. Usually, however, indefiniteness in a pleading can only be reached by motion to make more specific, and not by demurrer. But we think if it appears that the notice was given within a reasonable time, it will be a sufficient averment. It is provided by statute that insurance companies shall not insert in their polices any condition requiring the insured to give notice forthwith, or within the period of less than five days, of the loss of the insured property; and any such condition is void. But if such condition is nevertheless inserted, the most that can be required by the insurer of the insured is that he shall give notice of the loss within a reasonable time. Rev. St. 1894, § 4923 (Rev. St. 1881, § 3770); Pickel v. Insurance Co., 119 Ind. 291, 21 N. E. 898;Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. 315;Baker v. Insurance Co., 124 Ind. 490, 24 N. E. 1041;Insurance Co. v. Deckard, 3 Ind. App. 361, 28 N. E. 868. Does the complaint show that the notice was given within a reasonable time? It is averred that the notice was given as soon as the appellees discovered the loss. We need not decide what would be the consequence if an insured party, who had sustained a loss, were to remain negligently ignorant of such loss for a long time, and in consequence thereof fail to give the notice. No such case is here presented. We think the averment that appellees gave the notice within ----- days after the loss, and as soon as they had discovered the same, must be construed in connection with the general averment that appellees had performed all the conditions on their part to be performed, except as stated in the complaint, no other exception being mentioned with reference to the giving of notice. When thus construed, we think the complaint sufficiently shows the giving of the notice within a reasonable time. Insurance Co. v. Deckard, supra.

We also think the waiver of proof of loss is sufficiently pleaded. There is no provision in the policy as to how such proof of loss shall be made. As we have held, the appellees, within a reasonable time after the loss, notified the appellant of the same. The complaint alleges that on the 26th day of December, 1885, the company notified the appellees that it would not pay the insurance, or any part thereof, for the reason that the property was vacant when the fire occurred. The property was burned on the 21st of November, 1885. When the company refused to pay on the ground of a violation of the vacancy provisions in the policy, proof of loss would have been unavailing, if made after such refusal, in any event. Bowlus v. Insurance Co., 133 Ind. 106, 32 N. E. 319. The appellees were not chargeable with unreasonable delay in failing to make the proof of loss prior to the time of the refusal. What we have said concerning the question of notice is in many respects applicable here.

We proceed to consider the last objection urged to the complaint. Do the facts alleged show that the appellees were entitled to a reformation of the policy? That instrument provides in the body thereof, among other things, that if the buildings become vacant or unoccupied, without consent indorsed on the policy, the...