Pickels v. Phœnix Ins. Co.

• Decision Date: 06 June 1889
• Citation: 119 Ind. 291,21 N.E. 898
• Parties: Pickels v. Phœnix Ins. Co.
• Court: Indiana Supreme Court

119 Ind. 291

21 N.E. 898

Pickels

v.Phœnix Ins. Co.

Supreme Court of Indiana.

June 6, 1889.

Appeal from circuit court, Knox county; Oscar M. Welborne, Special Judge.

Action on a policy of fire insurance, brought by Pleasant Pickel against the Phœnix Insurance Company. Judgment for defendant, and plaintiff appeals.

A. C. Capron and Horace Corbin, for appellant. McLaren & Martindale, for appellee.

Coffey, J.

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 appelleefiled an answer in 11 pargraphs, 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 12 years old, when in truth and in fact it was 30 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 on the written application of the appellant, and that in said application he represented and warranted that there was only an incumbrance 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 is 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 appellee 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 is 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 appellee 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 of the policy in suit is that, if the property insured shall become mortgaged or incumbered during the existence of the policy, the same shall become void. That on the 18th day of February, 1885, one William J. Herbert 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: (1) That the court below erred in overruling, separately and severally, the demurrer to each of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth paragraphs of the answer to the complaint. (2) That said court erred in sustaining the demurrer of the appellee to each of the second and third paragraphs of the reply to the answer. (3) That said court erred in overruling the motion for a new trial. The second, third, and fourth paragraphs of the answer aver breach 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 warranty, 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. Insurance Co. v. Pickel, ante, 546, (this term.)

In our opinion these answers constitute a good defense to the cause of action set up in the complaint. This policy was involved in the case of Insurance Co. v. Pickel. 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 defense to the plaintiff's complaint, and the circuit court therefore erred in overruling the demurrer 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...