Shriner v. Union Federal Sav. & Loan Ass'n
Decision Date | 18 March 1955 |
Docket Number | No. 18651,18651 |
Citation | 125 N.E.2d 168,126 Ind.App. 454 |
Parties | Enoch T. SHRINER, Sylvia May Shriner, Appellants, v. UNION FEDERAL SAVINGS AND LOAN ASSOCIATION, a Corporation, Appellee. |
Court | Indiana Appellate Court |
L. Russell Newgent, Indianapolis, Ira L. Haymaker, Franklin, for appellants.
Rocap, Rocap, Reese & Robb, Indianapolis, for appellee.
Suit by appellants for damages resulting to their property alleged to have been sustained as a result of appellee's negligence in their failure to keep a certain fire insurance policy in force on their property on which appellee held a mortgage.
Prior to July 13, 1951, appellants mortgaged certain real estate and improvements to appellee. At the time of the execution of the mortgage, appellee required appellants to have insurance on the property containing the standard mortgage clause in their favor in the sum of $8,000. The policy in question resulting in this law suit was dated July 31, 1948, and expired July 13, 1951. Appellants were required to pay, in addition to the monthly payments on the mortgage, an additional sum of $4.35 a month to create a fund for the payment of the premiums on the insurance policy invovled. Appellants alleged that they made the money payments until September 2, 1951, at which time the building on the real estate was partially destroyed by fire; that the appellee negligently and carelessly omitted to renew the policy of insurance on the date it expired, causing it to lapse and resulting in loss to appellants.
Trial by jury resulting in verdict in favor of appellee upon which judgment was rendered.
Motion for new trial contained five specifications. Upon appeal, appellants waived all specifications except number three which is 'the court erred in refusing to give to the jury each of the instructions requested by the plaintiffs number three and number four.'
Appellants' agrument is limited to their tendered and refused instruction number three.
The assignment of error is the overruling of appellants' motion for new trial.
Instruction number three tendered by appellants and refused by the court is as follows:
'The burden of proof is on the defendant Union Federal Savings and Loan Association to establish by a preponderance of all the evidence that plaintiffs were guilty of contributory negligence, proximately contributing to their loss if any, they sustained; if said defendant has not so established such fact, then you should find that plaintiffs were not guilty of contributory negligence.'
This instruction dealing with the element of contributory negligence is based upon § 2-305, Burns' 1946 Repl., Vol. 2, Part I, Acts of 1943, ch. 227, § 1, p. 662.
Upon examination of the record as presented to us, our attention is directed as to whether appellants' action is one of ex contractu rather than ex delicto, based upon tort. This question has not been presented to us by either party in their brief. If it were an action ex contractu, then the instructions upon the question of negligence or contributory negligence would have been surplusage. The dividing line sometimes between the two is dim and uncertain. However, it cannot be overlooked that appellants charge appellee with negligently and carelessly omitting to keep the fire insurance on the mortgaged property in force and effect. Under this direct charge of negligence, upon which the suit was tried and jury instructed, the appellants under such condition elected to sue in tort instead of on contract for the alleged neglect or breach of contract. Under the facts presented, they had the right so to do but could not have had two different causes of action. Where the duty has its roots in contract the undertaking to observe due care may be implied from the relationship and should it be the fact that a breach of their agreement also constitutes such a failure to exercise care as amounts to a tort, the plaintiffs may elect which theory they will pursue, as the common-law authorities have it, to sue in case or in assumpsit.
It was stated in 1 Comyns' Digest, Action on the Case for Negligence, A4, p. 418, cited in Flint & Walling Mfg. Co. v. Beckett, 1906, 167 Ind. 491, 79 N.E. 503, 505, 12 L.R.A.,N.S., 924, that,
One of the defenses of the appellee under the pleadings was that appellants were guilty of contributory negligence. The court instructed the jury on this defense. Without contradiction were it not for the charge of...
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