Richmond Ins. Co. of New York v. Boetticher

• Decision Date: 17 February 1938
• Docket Number: 15684.
• Citation: 12 N.E.2d 1005,105 Ind.App. 558
• Parties: RICHMOND INS. CO. OF NEW YORK v. BOETTICHER et al.
• Court: Indiana Appellate Court

12 N.E.2d 1005

105 Ind.App. 558

RICHMOND INS. CO. OF NEW YORK v. BOETTICHER et al.

No. 15684.

Appellate Court of Indiana, in Banc.

February 17, 1938

Samuel Levin, Wm. L. Mitchell, of Evansville, and Embree &amp Baltzell, of Princeton, for appellant.

Milford M. Miller and William C. Welborn, both of Evansville, for appellees.

KIME Judge.

This was an action by appellees to recover on an insurance policy for loss occasioned by explosion. The complaint alleged (in addition to other necessary allegations) that appellees had other insurance and the loss was to be prorated; that on December 19, 1932, an explosion occurred in their oil burner which caused soot and oil to be thrown over personal property and damage to the building, all of which were covered by the policy; that immediate notice of said loss was given appellant; that on February 17, 1933, due proof of loss was made; and that all conditions on the part of appellees to be performed had been performed.

Appellant answered by general denial and a second paragraph which alleged that the policy was void because appellees, in submitting sworn proof of loss as required by the policy, had deliberately and fraudulently overstated the amount of the loss. To this second paragraph of answer appellee replied in general denial.

There was a trial to a jury, a verdict for $750 was returned, and judgment was entered thereon.

The overruling of appellant's motion for a new trial, the grounds that are projected into the brief being (1) that the court erred in refusing to withdraw submission from the jury for misconduct of counsel, (2) that the assessment of the recovery was too large, (3) that the verdict was not sustained by sufficient evidence, (4) that the court erred in refusing to give certain instructions tendered by appellant and (5) that the court erred in giving certain instructions tendered by appellees, is the error assigned.

There is a very grave question as to whether or not the appellant has presented any question whatsoever by its brief, which under the points, propositions, and authorities, seems to state nothing but abstract propositions of law; however since a correct result was reached below, we will resolve the doubt in favor of the appellant and discuss some of the points attempted to be presented.

Under the proposition as to misconduct of counsel, it appears from the brief that one of the attorneys for the appellees was examining a witness and evidently asked the witness this question, "Say anything about who was behind the investigation?" and then in some manner not disclosed asked the following, "May it be understood that the insurance company sent for him?" It is not shown to whom this was addressed: whether it was to the witness he was interrogating or to one of the attorneys representing the insurance company, or whether it was said in a loud voice so as to be audible to the jury or in a whisper to opposing counsel. It is not shown but that the court immediately admonished the jury to disregard such action. To make available misconduct of counsel by merely moving to set aside submission is not sufficient. The moving party must also state reasons therefor and show the trial court that the harm can not be cured by some action of the trial court. No reasons having been shown by the brief to have been advanced we cannot say that the matter here was prejudicial to such an extent as to necessitate a reversal. Ramseyer v. Dennis, 1918, 187 Ind. 420, at page 440, 116 N.E. 417, 119 N.E. 716. Of course such conduct seems improper, but its effect was not necessarily incurable. It seems that the only relief to which appellant was entitled was to have the jury admonished to disregard it. Since it is not apparent whether this was done the appellant can not complain. Lake Erie & Western R. Co. v. Howarth, 1920, 73 Ind.App. 454, at page 470, 124 N.E. 687, 127 N.E. 804.

As to the assessment of the amount of recovery, the appellant contends that under the policy the loss should be determined according to actual value with proper deduction for depreciation; that this was not done; and that, consequently the amount assessed is too large. ...