Shaffer v. The Milwaukee Mechanics' Insurance Company

• Decision Date: 12 March 1897
• Docket Number: 2,009
• Citation: 46 N.E. 557,17 Ind.App. 204
• Parties: SHAFFER ET AL. v. THE MILWAUKEE MECHANICS' INSURANCE COMPANY
• Court: Indiana Appellate Court

46 N.E. 557

17 Ind.App. 204

SHAFFER ET AL. v. THE MILWAUKEE MECHANICS' INSURANCE COMPANY

No. 2,009

Court of Appeals of Indiana

March 12, 1897

From the Delaware Circuit Court.

Affirmed.

James N. Templer and Edward R. Templer, for appellants.

Smiley N. Chambers, Samuel O. Pickens and Charles W. Moores, for appellee.

OPINION

WILEY, J.

Appellants, Shaffer and Foster, were partners engaged in the business of selling liquors at retail in the city of Muncie Indiana, under a license issued by the board of commissioners of Delaware county to the appellant, Shaffer. On March 23 1893, the appellants, Shaffer and Foster, procured the appellee to issue to them a policy of insurance on their saloon and restaurant fixtures and furniture and stock of liquors, contained in a certain building, specifically described in the complaint, in the sum of $ 800.00, and paid the premium thereon, amounting to $ 16.00. At the time said policy of insurance was issued, one Clayton B. Templer, of Muncie, was the authorized agent of the appellee to solicit insurance and issue and countersign policies so taken by him. At the time said policy was issued the said Templer had in his employment as clerk one Richman, whose duty it was to solicit for his employer insurance, and who was authorized to collect premiums and sign the name of his said employer to said policies. Prior to March 1, 1893, appellants, Shaffer and Foster, became indebted to The Schmidtt & Brother Company, a corporation of Cincinnati, Ohio, for goods and stock purchased, in the sum of about $ 500.00; and on March 21, 1893, they executed to said Schmidtt & Brother Company a chattel mortgage, to secure the payment of said indebtedness, upon all that part of the property covered by the policy of insurance, except the stock of liquors. The appellant, Shaffer, took said mortgage to the office of Clayton B. Templer, in Muncie, Indiana, already filled out, except as to two or three blanks which said Templer filled in, and the said Shaffer signed the firm name to the mortgage, and the said Templer, as a notary public, took the acknowledgement of it, put his seal thereon, and on the same day said mortgage was duly filed in the recorder's office of said county for record. On the 23d day of September, 1893, and while said policy was in force, the building in which the appellants, Shaffer and Foster, were operating their said saloon, and the property covered by said policy and said chattel mortgage, were wholly destroyed by fire.

After the execution of said mortgage, and after the destruction of said property by fire, appellants, Shaffer and Foster, assigned, in writing, said policy of insurance to The Schmidtt & Brother Company, by virtue of which assignment the said Schmidtt & Brother Company were authorized to collect and receipt for all the money that might be paid upon said insurance policy. On October 20, 1894, The Schmidtt & Brother Company reassigned to Shaffer and Foster an interest in said policy to the amount of $ 326.55. After said last assignment The Schmidtt & Brother Company, by a proceeding in a court of competent jurisdiction in Hamilton county, Ohio, was placed in the hands of a receiver, by virtue of which the equity that said corporation had in said policy by virtue of the assignment first above mentioned, passed to the receiver, and said receiver procured an order of the proper court in said county to join in the prosecution of this action.

Upon the issues joined, involving the substantial facts as above stated, the case was tried by a jury, and under the instructions of the court a special verdict was returned in the form of answers to interrogatories. The verdict of the jury was returned November 14, 1894, being the sixty-fourth judicial day of the September term, 1894, of the Delaware Circuit Court. On the day the verdict was returned the appellant, John DePinal, receiver, moved the court for judgment in his favor on the special verdict for $ 473.45, and appellants, Shaffer and Foster, moved for judgment in their favor for $ 326.55, and these two motions the court took under advisement. At the next succeeding term of said court, to-wit: on January 6, 1895, the defendant moved the court for judgment in its favor on the special verdict, and on the last named date the court overruled the motion of appellant, DePinal, receiver, and also the motion of the appellants, Shaffer and Foster, for judgment in their favor on the special verdict. To which ruling they each excepted. And the court sustained appellee's motion for judgment in its favor, to which ruling the appellants also excepted. On the same day the appellants moved the court, in writing, for a new trial; which was overruled, and to which they excepted. Appellee excepted to the filing of the motion for a new trial on the ground that the motion came too late. On appeal, appellants have assigned error as follows:

First. Error of court in overruling appellants' motion for judgment in their favor on the special verdict.

Second. Error of court in sustaining appellee's motion for judgment in its favor on the special verdict.

Third. The court erred in rendering final judgment against appellants for costs upon the special verdict.

Fourth. The court erred in overruling appellants' motion for a new trial.

The fourth assignment of error does not present any question for our decision. It affirmatively appears from the record that the verdict in the court below was returned on November 14, 1894, being the sixty-fourth judicial day of the September term, 1894, of said court. This court judicially knows that November 14, 1894, was not the last day of the September term, 1894, of said court, and hence, as appellants did not file their motion for a new trial during the term at which the cause was tried, and the verdict was not returned on the last day of the term, they waived their right to file a motion for a new trial.

Section 570, Burns' R. S. 1894 (561, Horner's R. S. 1896), provides: "Application for a new trial may be made at any time during the term at which the verdict or decision is rendered; and if the verdict or decision be rendered on the last day of the session of any court, or on the last day of any term, then, on the first day of the next term of such court, whether general, special, or adjourned."

It was held by this court in Jacquay v. Hartzell, 1 Ind.App. 500, 27 N.E. 1105, that a failure of the court to rule upon a motion for a judgment on the special finding during the trial term will not be cause for making a motion for a new trial at the next term.

Under the plain meaning of the statute and the decisions of the Supreme and Appellate Courts of this State, the appellants in this case waived their right to a motion for a new trial by not filing it during the term at which the cause was tried, it affirmatively appearing from the record that the verdict of the jury was not returned on the last day of the term.

The other assignments of error bring in review the same questions, and may be considered together.

Appellee has interposed a motion to dismiss the appeal, which involves some questions of practice, but from our view of the law in this case we can dispose of the questions involved without passing upon the motion to dismiss and without prejudicing the rights of the appellee under such motion.

There seems to us to be but one question in the case of controlling interest or importance, and that arises under an express condition of the policy of insurance, and that condition is specifically set out and stated in the policy, and is as follows: "This entire policy of insurance, unless otherwise provided by agreement endorsed thereon or added thereto, shall be void * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage."

The special verdict is very lengthy, and contains much unnecessary, irrelevant, and redundant matter, and we deem it only necessary to refer to those parts or portions of the verdict that are pertinent to the question under consideration. In their answers to interrogatories the jury found and stated, in brief, the following facts: That Clayton B. Templer, of Muncie, Indiana, was the agent of appellee and authorized to solicit insurance countersign policies and collect premiums; that he had in his employ one Richman as clerk, who was authorized to sign the name of his employer to policies, solicit insurance, collect premiums, and issue and countersign policies; that on March 21, 1893, appellant, Shaffer, went to the office of said Templer, who was a lawyer and notary public, with a chattel mortgage, filled out, except as to one or two blanks, covering the property that was afterwards embraced in the policy of...