Replogle v. The American Insurance Co.

• Decision Date: 08 October 1892
• Docket Number: 15,364
• Citation: 31 N.E. 947,132 Ind. 360
• Parties: Replogle v. The American Insurance Company et al
• Court: Indiana Supreme Court

31 N.E. 947

132 Ind. 360

Replogle v. The American Insurance Company et al

No. 15,364

Supreme Court of Indiana

October 8, 1892

From the Wayne Circuit Court.

The judgment is reversed, with costs.

F. M Finch, J. A. Finch and T. J. Study, for appellant.

F Winter and J. B. Elam, for appellees.

OPINION

McBride, C. J.

This was a suit by Replogle, the appellant, to recover on a policy of fire insurance issued by the American Insurance Company and re-insured in the Home Insurance Company.

The policy, a copy of which was filed with the complaint contained the following provision:

"6. It is further provided and agreed that if the assured shall have, or shall hereafter obtain, any other insurance on the property hereby insured, or any part thereof, without the consent of the secretary of this company written thereon, * * * * this policy shall be void, and the assured shall not be entitled to recover from this company any loss or damage which may occur in or to the property hereby insured, or any part or portion thereof."

The appellees answered in four paragraphs. The first was a general denial, while the remaining three were based upon allegations that, after the policy was issued, and before the loss occurred, the assured, in violation of the condition above stated, without the knowledge or consent of the appellees, procured other and additional insurance on the same property in the Ohio Farmers' Insurance Company.

The sufficiency of the special answer is questioned on the ground that no copy of the policy upon which the suit was brought was filed with them. This was not necessary. As above stated, a copy of it was filed with the complaint. The answers were in confession and avoidance, and did not seek any affirmative relief. They necessarily admit the truth of all material and well pleaded facts in the complaint and the correctness of all exhibits properly filed as parts of it. The ruling of the circuit court was right for this and other reasons. It is also contended that two of the paragraphs are bad because it is not averred that the policy in the Ohio Farmers' Insurance Company was in force when the loss occurred. If the policy in suit was avoided by the additional insurance, it was avoided when the additional policy was taken, and it is immaterial whether the new policy was still in force when the loss occurred or not.

The appellant filed a reply in four paragraphs. The first is a general denial. The second alleges in substance that the policy issued by the Ohio Farmers' Insurance Company contained a provision relating to other insurance similar to that contained in the policy sued on, and alleges that when it was issued the policy sued on was in full force; that the assured did not notify the Ohio Farmers' Insurance Company of its existence, and that that company never at any time, nor in any manner, consented to the additional insurance. It is insisted that by reason of these facts the policy issued by the Ohio Farmers' Insurance Company was void, and did not constitute additional insurance so as to avoid the first policy.

This is the second appeal of this case, the decision on the first appeal being reported under the title, American Ins. Co. v. Replogle, 114 Ind. 1, 15 N.E. 810. In the opinion there rendered the sufficiency of this paragraph of reply was fully considered, the late Judge Mitchell announcing the opinion for the court. Counsel for the appellant question the correctness of the conclusion there reached. It would be sufficient to say that, right or wrong, it is the law of the case and must stand. We will, however, add, that that opinion has our unqualified approval. We regard it as a fair and correct exposition of the law. The fourth paragraph of reply alleges, in substance, that the Ohio Farmers' Insurance Company is a mutual company; that the assured became a member of the company by taking a policy, and that the charter of the company contained a provision relating to additional insurance substantially like that contained in the policy. The argument is, in substance, that as the charter forbids such insurance, and declares policies issued in violation thereof void, the policy was absolutely void for want of power in the company to issue it, and, therefore, constituted no additional insurance. It is undoubtedly true, that the charter of the company entered into and formed a part of the policy. Assuming that the policy issued by the Ohio Farmers' Insurance Company was void by reason of the pre-existing policy, yet, in a suit upon that policy, its invalidity could only be shown by the proof of extrinsic facts. There was nothing upon the face of the policy, or in the terms of the charter, to indicate the existence of the additional fact necessary to avoid it. It must be presumed that the party procuring it did so with the intention of availing himself of the protection which it prima facie afforded him.

We quote, as apropos, the language of Judge Mitchell in American Ins. Co. v. Replogle, supra.

"The primary purpose of inserting conditions against other insurance is to protect the company from the hazard of over insurance. The condition implies that the insurance company will decline the obligation of insurer whenever the relations of the owner to the property are such that he would be benefited by, and might, therefore, have a motive for, its destruction. Consequently, it aims to secure the continued vigilance and co-operation of the owner in preserving the property, and to compel him to maintain such an interest in, and relation to, the property as to have no motive for the relaxation of his care over it. * * Whenever, therefore, the property owner, in violation of a condition such as that in question, applies for and obtains a second policy, valid upon its face, with the intent and purpose to carry the second policy as valid insurance, without giving notice thereof, he has thereby defeated the whole policy and purpose of the condition, and has done that which constitutes a complete defence to an action on the first policy. As was in effect said in Lackey v. Georgia Home Ins. Co., 42 Ga. 456: If the property owner thinks the second policy is good, and intends it to be good, the danger of burning is the same as if it really were good."

In our opinion the fourth paragraph is no better than the second.

The third paragraph of reply is as follows:

"For further reply to the second, third and fourth paragraphs of answer herein the plaintiff says that after the destruction by fire of the property mentioned in the complaint herein the defendants, with a full knowledge of all the facts set out in said paragraph of answer, required plaintiff, upon notice by him to them of said destruction of said property by fire, to make due and full proofs of said destruction by fire of said property, and of his loss thereby, and required him, after he had made said proofs, which he deemed sufficient, to make out additional proofs of said destruction of said property by fire, and required him to furnish plans and specifications of the buildings so...