Royal Ins. Co. v. Stewart , No. 9659.

Docket NºNo. 9659.
Citation121 N.E. 307
Case DateDecember 17, 1918
CourtCourt of Appeals of Indiana

121 N.E. 307

ROYAL INS. CO., LIMITED, OF LIVERPOOL
v.
STEWART.

No. 9659.

Appellate Court of Indiana.

Dec. 17, 1918.


Appeal from Circuit Court, Decatur County; Hugh Wickens, Judge.

Action on fire policy by William F. Stewart against the Royal Insurance Company, Limited, of Liverpool. Judgment for plaintiff, and defendant appeals. Affirmed.

[121 N.E. 308]

Burke G. Slaymaker, of Indianapolis, for appellant.

Marshall Hacker and Frank S. Jones, both of Columbus, for appellee.


FELT, J.

This is a suit to recover damages for loss by fire of certain property of appellee alleged to have been insured by appellant.

The complaint is in three paragraphs. The amended first paragraph seeks to reform the policy of insurance issued to appellee, and to recover thereon as reformed. It is in substance alleged that by the fraud of the defendant insurance company and by the mistake of the plaintiff, appellee, a certain clause was incorporated in the written policy which required the insured to keep an inventory of the property covered by the policy, and certain bills, books of account, and papers in an iron safe, and to produce the same in case of loss by fire as a condition precedent to the right of recovery, whereas it was expressly agreed by and between the parties before the policy was issued or the premium paid that such clause should be omitted from the policy, and that appellee should have the right to keep the aforesaid books and papers in his storeroom containing the property insured, and should not be required to have or keep said books and papers in an iron safe during the life of the policy to be issued to appellee by appellant.

The second paragraph is identical with the first paragraph of complaint, except it seeks to reform the contract on the ground of mutual mistake of the parties.

The third paragraph seeks to recover upon the policy as written, except certain provisions therein, which are alleged to have been waived by the company, after knowledge of all the facts, but it makes no such allegations as to the inventory and iron safe clause.

In each paragraph facts are alleged to show the issuance of the policy, the circumstances of its delivery, payment of the premium, destruction of the property by fire during the life of the policy, and other facts essential to appellant's liability for the loss of the property, reference to which will be hereafter made in so far as necessary to the determination of the questions duly presented for decision.

Answers were filed to the complaint, in 14 paragraphs, the first of which was a general denial.

The second paragraph of answer, addressed to each paragraph of the complaint, alleges, in substance, that on January 6, 1914, the Jennings circuit court of the state of Indiana, in an action between the same parties hereto, on the same policy of insurance, for the same fire and same loss, rendered judgment for the defendant against the plaintiff on the merits of the cause of action

[121 N.E. 309]

alleged in each paragraph of the complaint in this suit; that such judgment was not modified or appealed from, was in full force and effect when this action was commenced, and is still in full force and binding upon the parties and a complete adjudication of all the issues presented by the complaint in this action.

The third paragraph of answer addressed to the amended first and second paragraphs of complaint alleged in substance that appellee ratified and adopted the policy as written.

The fourth paragraph of answer, addressed to said first and second paragraphs of complaint, in substance, alleges that appellee elected his remedy and sued to recover upon the policy as written before he instituted this suit and pursued such remedy to final judgment in such action at law, which judgment is unappealed from, in full force, and binding upon the parties.

The fifth paragraph, likewise so addressed, is drawn upon the theory of an estoppel in pais.

The sixth paragraph is addressed to each paragraph of the complaint, and alleges facts in detail to show a former adjudication.

The amended seventh paragraph is also addressed to each paragraph, and proceeds on the theory of a breach of the inventory and iron-safe clause of the policy by appellee, the rescinding of the policy by appellant, and a tender back to appellee of the premium, and the keeping of the tender good by paying the same into court.

The amended eighth paragraph, addressed to each paragraph of complaint, in substance, alleges that the inventory and iron-safe clause is a warranty by the insured and a part of the consideration moving to the insurer for the issuance of the policy; that said clause was breached by appellee, the policy rescinded by appellant, the premium tendered back, and such tender kept good by payment into court.

The ninth paragraph is directed to each paragraph of the complaint, alleges a breach of the policy by the keeping of gasoline on the premises in violation of its provisions, the rescission of the policy, tender back of the premium, and the payment of the same into court.

The tenth and eleventh paragraphs of answer are addressed to each paragraph of the the complaint. The tenth paragraph is a partial answer, based on the alleged facts of concurrent insurance, the value of the property, and liability, if any, for one-half of three-fourths of the total value under the provisions of the policy.

The eleventh paragraph alleges numerous facts to show that appellee is estopped by the former suit to claim a waiver of the admitted breach in failing to furnish proof of loss required by the insurance contract.

The twelfth paragraph, addressed to the amended first and second paragraphs of complaint, alleges no consideration for the insurance contract.

The thirteenth and fourteenth paragraphs of answer are addressed to each paragraph of complaint. The thirteenth paragraph sets out the complaint and proceedings in the first suit, alleges an admission by appellee of a breach of the inventory and iron-safe clause, and that the same was a part of the policy sued upon; that there had been no waiver of the same by appellant; that appellee is estopped by the facts aforesaid to deny that said provision is a part of the policy, or that the same was breached by him.

The fourteenth paragraph alleges that the plaintiff breached the iron-safe and inventory provisions of the policy and the provisions requiring proof of loss; that appellant gave notice of a rescission of the policy before this suit was commenced and tendered back the premiums; that such rescission and tender were accepted by appellee.

To each of the special answers a reply in general denial was filed.

The demurrer of the defendant to each paragraph of the complaint for insufficiency of the facts alleged to state a cause of action was overruled.

Appellee's demurrer to each of the fourth, fifth, amended seventh, amended eighth, ninth, and amended thirteenth paragraphs of answer was sustained.

The defendant moved to require the plaintiff to elect upon which paragraph of complaint he would proceed to trial, and such motion was overruled.

The case was submitted to the court for trial on the first and second paragraphs of complaint, and the issues upon the third paragraph of complaint were submitted to a jury.

The jury returned a verdict for the plaintiff in the sum of $1,669.50. The court found for the plaintiff on his second paragraph of complaint, and against him on his first paragraph of complaint.

Appellant's several motions for a new trial were overruled, judgment was rendered for appellee for the reformation of the contract as prayed for in his second paragraph of complaint, for the amount of the policy and also on the verdict of the jury.

Appellant reserved exceptions to the several rulings of the court, prayed an appeal, and has assigned numerous errors as grounds for reversal of the judgment.

The errors relied on and presented by the briefs are in substance as follows: The overruling of the demurrer to each paragraph of the complaint, overruling each of appellant's motions for a new trial, sustaining appellee's demurrers to each of appellant's fourth and

[121 N.E. 310]

fifth paragraphs of answer to the amended first and second paragraph of complaint, sustaining appellee's demurrer to appellant's seventh, amended eighth, ninth, eleventh, and thirteenth paragraphs of answer to each paragraph of the complaint.

Appellant moved for a new trial generally on numerous grounds, among which are the following: The verdict of the jury is not sustained by sufficient evidence, the verdict is contrary to law, error in refusing to give certain instructions tendered by appellant, and in giving certain instructions to the jury.

By a similar motion, numbered 2, appellant requested a new trial on the third paragraph of the complaint.

By motion No. 3 it sought a new trial of the issues formed on the second paragraph of the complaint alleging the same causes as in motion No. 1, and in addition thereto the following: The decision of the court is not sustained by sufficient evidence, and the same is contrary to law.

Appellant insists that its answer of former adjudication is clearly established by the undisputed evidence, including the record and proceedings of the former suit upon the policy in controversy, brought by appellee in the Riply circuit court, taken to the Jennings circuit court on change of venue, and there disposed of by the sustaining of appellant's demurrer to appellee's complaint and the rendition of a final judgment thereon against appellee in favor of appellant.

There is no controversy as to the identity of the parties, the jurisdiction of the court over the parties, or the subject-matter, the policy in suit, the property insured, the destruction of the same by fire during the life of the policy, or that appellee sought a recovery in that action for the identical loss for which he recovered in this suit.

The evidence shows that on September 12, 1913, appellee filed in...

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9 practice notes
  • Lewis v. Rex Metal Craft, Inc., No. 49A02-0501-CV-11.
    • United States
    • Indiana Supreme Court of Indiana
    • July 28, 2005
    ...To avail oneself of the presumption of satisfaction of a judgment upon the passage of twenty years, a party "must plead payment." Odell, 121 N.E. at 307, 72 Ind.App. at 78 (again, referring to section 307, now section Ind.Code § 34-11-2-12). Although in the proceedings below Lewis raised In......
  • Linderman Mach. Co. v. Hillenbrand Co., No. 10053.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1920
    ...against appellee the doctrine of res adjudicata. Williams v. Harrison, 123 N. E. 245. As said by this court in Royal Ins. Co. v. Stewart, 121 N. E. 307-311: “It is apparent from an examination of the numerous decisions that what might properly have been so tried and determined depends *** u......
  • Royal Ins. Co. v. Stewart, No. 23903.
    • United States
    • Indiana Supreme Court of Indiana
    • February 10, 1921
    ...from Appellate Court under Acts 1901, c. 247, p. 567, § 10. Judgment of circuit court reversed. Superseding opinion of Appellate Court (121 N. E. 307). [129 N.E. 854]Burke G. Slaymaker, of Indianapolis, for appellant.Hacker & Jones, of Columbus, for appellee.EWBANK, J. This was an action by......
  • Southern Feed Stores Inc v. Great Am. Indem. Co, No. 11225.
    • United States
    • Supreme Court of Georgia
    • May 12, 1936
    ...576, 156 S.E. 222. 2. There had been no election of remedies by the plaintiff in this case. In Royal Ins. Co. v. Stewart, Ind. (Ind.App.) 121 N.E. 307, it was said: "In action on insurance policy, in which plaintiff alleged waiver and estoppel of insurer, where based on ruling sustaining de......
  • Request a trial to view additional results
9 cases
  • Lewis v. Rex Metal Craft, Inc., No. 49A02-0501-CV-11.
    • United States
    • Indiana Supreme Court of Indiana
    • July 28, 2005
    ...To avail oneself of the presumption of satisfaction of a judgment upon the passage of twenty years, a party "must plead payment." Odell, 121 N.E. at 307, 72 Ind.App. at 78 (again, referring to section 307, now section Ind.Code § 34-11-2-12). Although in the proceedings below Lewis raised In......
  • Linderman Mach. Co. v. Hillenbrand Co., No. 10053.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 18, 1920
    ...against appellee the doctrine of res adjudicata. Williams v. Harrison, 123 N. E. 245. As said by this court in Royal Ins. Co. v. Stewart, 121 N. E. 307-311: “It is apparent from an examination of the numerous decisions that what might properly have been so tried and determined depends *** u......
  • Royal Ins. Co. v. Stewart, No. 23903.
    • United States
    • Indiana Supreme Court of Indiana
    • February 10, 1921
    ...from Appellate Court under Acts 1901, c. 247, p. 567, § 10. Judgment of circuit court reversed. Superseding opinion of Appellate Court (121 N. E. 307). [129 N.E. 854]Burke G. Slaymaker, of Indianapolis, for appellant.Hacker & Jones, of Columbus, for appellee.EWBANK, J. This was an action by......
  • Southern Feed Stores Inc v. Great Am. Indem. Co, No. 11225.
    • United States
    • Supreme Court of Georgia
    • May 12, 1936
    ...576, 156 S.E. 222. 2. There had been no election of remedies by the plaintiff in this case. In Royal Ins. Co. v. Stewart, Ind. (Ind.App.) 121 N.E. 307, it was said: "In action on insurance policy, in which plaintiff alleged waiver and estoppel of insurer, where based on ruling sustaining de......
  • Request a trial to view additional results

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