Sisk v. Citizens' Insurance Company of Evansville
| Decision Date | 14 January 1897 |
| Docket Number | 1,721 |
| Citation | 45 N.E. 804,16 Ind.App. 565 |
| Parties | SISK v. CITIZENS' INSURANCE COMPANY OF EVANSVILLE |
| Court | Indiana Appellate Court |
From the Knox Circuit Court.
Affirmed.
W. A Cullop, C. B. Kessinger and F. M. Branthoover, for appellant.
Thomas Hanna, for appellee.
COMSTOCK C. J. ROBINSON, J., took no part in this decision.
This action was commenced in the Knox Circuit Court on the insurance policy issued by appellee to appellant in the sum of $ 1,000.00. To the complaint, a demurrer was filed and overruled. The defendant then answered in six paragraphs. The first was a general denial.
The plaintiff demurred severally to the second, third, fourth, fifth, and sixth paragraphs, which demurrer was sustained as to the sixth, and overruled as to the others. The plaintiff replied to the second, third, fourth, and fifth paragraphs. There was a trial by jury, and verdict and judgment for the defendant. The errors assigned are the overruling of the demurrers of appellant to the second, third, fourth, and fifth paragraphs of defendant's answer.
The policy is set out in the complaint and contains the following provisions:
The second paragraph of the answer alleges that after the issuance of the policy in suit, plaintiff procured on the same property insurance, from the German Insurance Company, of Freeport, Illinois, in the sum of $ 700.00, without the consent in writing of the defendant company, endorsed upon the policy sued upon, which said policy, issued by the German Insurance Company, was, and still is valid. Counsel for appellant contend that this paragraph is fatally defective, because it does not aver that consent of the company for other insurance was not given in any other manner than in writing, and does not negative the waiver of the condition that such consent must be given in writing, endorsed on the policy; that to avoid the policy, for this reason, the defendant assumed the burden, and should have pleaded the matter of avoidance.
To this proposition we cannot assent. Such a provision in a policy, as has often been stated by the courts, is for the benefit of the insurer to protect the company from the hazard of overinsurance. The law will not presume that the defendant waived a provision intended for its protection. Such condition may be waived as held in Moffitt v. Phenix Ins. Co., 11 Ind.App. 233, 38 N.E. 835; New v. German Ins. Co., 5 Ind.App. 82, 31 N.E. 475. Phenix Ins. Co. v. Hart, 149 Ill. 513, 36 N.E. 990, cited in appellant's brief, and in numerous other decisions of our Supreme Court.
In the cases in which the question of waiver is passed upon, as a rule, averments of facts claimed to constitute waiver are set out, either by way of reply to answer, pleading the breach of condition, or in the complaint.
The matter set up in the paragraph of answer was such as in terms avoided the contract of insurance. Plaintiff in effect rendered it voidable and the waiver of the forfeiture was a proper subject of reply.
The third paragraph of answer alleges prior insurance without notifying defendant company, and without procuring its consent endorsed on the policy. The objections to the second and third paragraphs are substantially alike, and the same authorities and reasoning apply to both. It is further urged that the allegation, "that the plaintiff procured to be issued to her a policy of insurance, is not equivalent to an allegation of delivery to, and acceptance of such policy by the plaintiff." Conceding the learning of counsel, we think they are in error in this interpretation. A standard dictionary defines the word procured "to acquire for one's self," "to cause;" and the word issue "to deliver for use." An allegation, that one has caused to be delivered to himself any article, imports its acceptance.
The fourth paragraph of answer alleges that the plaintiff does not own the entire interest in the property insured, but that one James Sisk owned the one undivided half thereof at the time said policy was issued.
The objection urged to this paragraph is that it does not aver facts showing no insurable interest in the property.
In support of this proposition counsel in their able brief cite Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460, 12 A. 668; Knop v. National Fire Ins. Co., 101 Mich. 359, 59 N.W. 653, 2 Am. St. 686; Cross v. National Fire Ins. Co., 132 N.Y. 133, 30 N.E. 390; Carpenter v. German American Ins. Co., 135 N.Y. 298, 31 N.E. 1015; Van Schoick v. Niagara Fire Ins. Co., 68 N.Y. 434; the policies in which cases contain provisions as to titles of the insured similar to the policy issued by the defendant company.
Imperial Fire Ins. Co. v. Dunham, supra, was a case in which the holder of the policy was the purchaser, under articles, of the land upon which stood the property insured. The court held that the policy was not void, upon the ground that he was the equitable owner in fee, and, in respect to the insurance, the entire, unconditional, and sole owner; that, when articles are entered into for the sale of land, the purchaser is considered the owner.
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