Pickel v. The Phenix Insurance Co.
| Decision Date | 06 June 1889 |
| Docket Number | 13,745 |
| Parties | Pickel v. The Phenix Insurance Company, of Brooklyn |
| Court | Indiana Supreme Court |
From the Knox Circuit Court.
The judgment is reversed, with instructions to sustain the demurrer to the fifth, sixth, seventh, eighth, ninth and tenth paragraphs of the answer, and to overrule the demurrer to the second and third paragraphs of the reply, and for further proceedings not inconsistent with this opinion.
W. A Cullop, G. W. Shaw and C. B. Kessinger, for appellant.
J McCabe and E. F. McCabe, for appellee.
This is an action by the appellant against the appellee upon an insurance policy. The complaint alleges that, on the 15th day of June, 1886, the plaintiff's residence, in Knox county together with his household goods therein, covered by the policy in suit, was destroyed by fire.
The appellee filed an answer in eleven paragraphs, the first being a denial.
The second paragraph avers that the policy of insurance was issued upon the written application of the appellant; that in said application the appellant represented and warranted that the house named in the complaint was only twelve years old, when in truth and in fact it was thirty years old, by reason of which breach of warranty said policy is void.
The third paragraph of the answer avers that the policy in suit was issued upon the written application of the appellant, and that in said application he represented and warranted that there was only an encumbrance of $ 1,000 on the land upon which the house named in the complaint was located, when in truth and in fact there was a mortgage on said land for the sum of $ 2,200, and $ 770 interest thereon, by reason of which breach of warranty said policy is void.
The fourth paragraph avers that the policy in suit was issued upon the written application of the appellant, and that in said application he represented and warranted that the house named in the complaint was of the then cash value of $ 400, when in truth and in fact it was of the then cash value of $ 250 only, by reason of which breach of warranty said policy is void.
The fifth paragraph avers that the policy in suit was issued upon the written application of the appellant, and that in said application he stated and warranted that another dwelling-house situated on the land described in the policy was of the value of $ 300, when in truth and in fact it was of the value of $ 100 only, by reason of which breach of warranty the policy was void.
The sixth paragraph avers that the policy in suit was issued upon the written application of the appellant, and that in said application the said appellant stated and warranted that the barn described in said policy of insurance was of the value of $ 500, when in truth and in fact it was of the value of $ 300 only, by reason of which breach of warranty said policy is void.
The seventh paragraph avers that the policy in suit was issued on the written application of the appellant, and that in said application the appellant warranted and stated that the land upon which the house named in the complaint was located was of the value of $ 35 per acre, when in truth and in fact it was of the value of $ 25 only, by reason of which breach of warranty said policy was void.
The eighth paragraph avers that one of the conditions of the policy in suit is, that if the buildings therein named shall be or become vacant during the existence of the policy, the same should become void; that in violation of said condition, dwelling-house No. 2, named in said policy, did become vacant after the execution of said policy, and so remained vacant up to the time of the destruction of the house named in the complaint, by reason of which said policy became void.
The ninth paragraph avers that certain personal property covered by the policy in suit, consisting of stock and farming implements, was mortgaged in violation of the conditions of said policy, by reason of which said policy became void.
It is averred in the tenth paragraph of the answer that, in violation of the conditions of the policy in suit, the appellant mortgaged certain of the personal property insured thereby, consisting of corn and hay, by reason of which said policy became void.
It is averred in the eleventh paragraph of the answer that one of the conditions in the policy in suit is, that if the property insured shall become mortgaged or encumbered during the existence of the policy, the same shall become void; that, on the 18th day of February, 1885, one William J. Hebberd recovered a judgment in the Knox Circuit Court, which became a lien on the house named in the complaint, by reason of which said policy became void.
The appellant filed a several demurrer to each of the above affirmative answers, which was sustained as to the eleventh and overruled as to the others, to which he excepted.
The appellant then filed a reply in three paragraphs, the first consisting of the general denial. The court sustained a demurrer to the second and third paragraphs of the reply, and the appellant excepted. A trial of the cause resulted in a verdict and judgment for the appellee. The appellant assigns as error:
1st. That the court below erred in overruling separately and severally the demurrers to each of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth paragraphs of the answer to the complaint.
2d. That said court erred in sustaining the demurrers of the appellee to each of the second and third paragraphs of the reply to the answer.
3d. That said court erred in overruling the motion for a new trial.
The second, third and fourth paragraphs of the answer aver breaches of warranty contained in the application for the insurance of the house named in the complaint. These warranties are in relation to the condition of the property destroyed, and where there is a substantial breach of such warranties the policy is void. The warranties affecting the risk on the house also affected the personal property contained therein. As to the house and its contents, the policy is an entirety, and indivisible. Phenix Ins. Co. v. Pickel, ante, p. 155.
In our opinion these answers constitute a good defence to the cause of action set up in the complaint. This policy was involved in the case of Phenix Ins. Co. v. Pickel, supra. In that case it was held that the policy was several as to the different buildings therein named, and that a breach of the warranty as to the one did not affect the other.
The fifth, sixth, seventh, eighth, ninth and tenth paragraphs of the answer aver breaches of warranties and covenants having no relation to the building and its contents for the destruction of which this suit is prosecuted. In our opinion these several answers constitute no defence to the plaintiff's complaint, and that the circuit court, therefore, erred in overruling the demurrers thereto.
The second paragraph of the reply is addressed to the third paragraph of the answer, and avers that the application therein set out was written on a printed blank furnished by the appellee, which had printed questions thereon, with blanks for answers thereto; that said application was made by him, at the request of the appellee, through its general agent, S. R. Hopkins, who took the same by reading the questions printed thereon, and writing down the answers of the appellant thereto; that in answer to the question in said application in relation to the real estate on which the buildings insured are...
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