Swing v. Wellington
| Decision Date | 28 October 1909 |
| Docket Number | 6,509 |
| Citation | 89 N.E. 514,44 Ind.App. 455 |
| Parties | SWING, TRUSTEE, v. WELLINGTON ET AL |
| Court | Indiana Appellate Court |
From Superior Court of Madison County; Cassius M. Greenlee, Judge.
Action by James B. Swing, as trustee for the creditors and policy holders of the Union Mutual Fire Insurance Company, of Cincinnati, Ohio, against James Wellington and another. From a judgment for defendants, plaintiff appeals.
Affirmed.
Oliver H. Carson, Walker & Foster and Patterson A. Reece, for appellant.
William A. Kittinger, William S. Diven, Marcellus A. Chipman, Sanford M. Keltner and Edgar E. Hendee, for appellees.
From the complaint in this cause it appears that the supreme court of Ohio appointed James W. Swing to act as trustee for the creditors and policy holders of the Union Mutual Fire Insurance Company of Cincinnati, Ohio, and that he afterwards qualified, and, by order of that court brought this action against appellees to enforce the payment of $ 289.34, alleging that said amount had been fixed by a decree of the supreme court of Ohio as the amount due to said company from appellees by reason of certain policies of insurance held by them. A demurrer to the complaint was overruled. Appellees answered in eight paragraphs. The first in substance, averred that neither said insurance company which was a foreign corporation, nor its agent, who solicited appellees to take policies of insurance, was licensed to do business in Indiana, and had not complied with the laws of this State respecting foreign insurance companies; that appellees were operating a flour-mill and elevator, and were residents of this State; that at the city of Anderson, Indiana, they signed a written application to said company for insurance, with notes attached covering the amount of premium which might become due on account of said policies; that afterwards policies of insurance were issued to appellees by the company and delivered to them at Anderson, Indiana; that all premiums due for insurance were paid and all policies and notes canceled and surrendered.
The second paragraph admitted that appellees, from December 1, 1888, to October 1, 1890, carried two policies of insurance with said company on property owned by them as partners in Anderson, Indiana, and that was the only business relation ever existing between said company and appellees; that the insurance contract entered into was one governed by the laws of Indiana; that neither said company nor its agent ever complied with the laws authorizing it or its agent to do business in this State.
The third and fourth paragraphs averred that the cause of action did not accrue in six and ten years, respectively.
The fifth paragraph was a general denial.
The sixth paragraph, as amended, proceeded upon the theory that appellees, through the misrepresentations of the company's agent regarding the right or authority of the company to assess appellees in excess of an agreed premium of $ 40 per thousand per annum, and also as to the meaning and effect of certain specific clauses in the application and contract of insurance, which misrepresentations appellees relied on and believed to be true, and without any knowledge or means of ascertaining the truth or falsity of said representations, did make an application to said company for policies of insurance, and received and accepted two policies at the city of Anderson, Indiana, and did execute two promissory notes of $ 200 each, etc.
The seventh paragraph, in substance, showed that while the company was still in business, a difference arose between it and appellees as to said contracts of insurance, and, for a valuable consideration paid by appellees, the company released and canceled the contracts, and surrendered to appellees the notes for all unpaid premiums, and each released and discharged the other from all obligations whatsoever.
A demurrer was sustained to the eighth paragraph, and no question is presented on that ruling. A reply in denial closed the issues.
The issues thus formed were tried by the court, special findings made, conclusions of law stated thereon, and judgment rendered in favor of appellees.
The record before us contains several assignments of errors, but from an examination of appellant's brief, under the heading of Points, it is clear that the appellant is relying only upon the assignments that the court erred in its conclusions of law and in overruling his motion for a new trial.
In substance, the findings show that the Union Mutual Fire Insurance Company, of Cincinnati, Ohio, was incorporated in the year 1887, in the State of Ohio, pursuant to the laws of that state, with its place of business at Cincinnati, Ohio. The purpose of the corporation was to insure its members, residents in or out of the State of Ohio, against loss or damage by fire or lightning to buildings used for various purposes, and their contents. The law under which said company was incorporated made provision for the payment of losses and incidental expenses by assessment on its members. A copy of three sections of the statutes of Ohio, under which said company was authorized to do business, was made a part of the findings. With other provisions of these sections, it is provided that a person who effects insurance and continues to be insured in such a company becomes a member thereof during the period of insurance, and is bound to pay for losses and incidental expenses, as they accrue to the company, in proportion to the original amount of his deposit note or contingent liability; that "the directors shall, as often as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the by-laws prescribe, and the sum to be paid by such member shall always be in proportion to the original amount of such liability, and shall be paid to the officers of the company within thirty days after the publication of such notice." It is provided that the capital of the company shall be kept unimpaired, by assessing its members the amount needed to pay losses and expenses, in proportion to their several liabilities. The refusal of a member for thirty days, after the publication of said notice, and after the demand for payment, to pay the sum assessed against him gives the directors authority to sue for and recover the whole amount of contingent liability. The additional findings substantially cover all of the facts pleaded in the first, second, sixth and seventh paragraphs of answer.
Upon these findings the court stated conclusions of law as follows:
Under the first assignment of error our attention is directed to the question, Was the contract of insurance an Ohio or an Indiana contract?
From the special findings it appears that in November, 1888, the appellees were partners, and owned and operated an elevator and flour-mill in the city of Anderson Indiana; that during said month, and for years prior thereto, and ever since, appellees have resided and had their place of business in said city; that in said month of November, and for sometime thereafter, the Union Mutual Fire Insurance Company, of Cincinnati, Ohio, was a corporation organized under the laws of the State of Ohio, and for which, as well as all others concerned, appellant Swing was acting as trustee, sent its authorized agent into Indiana and to said city of Anderson to solicit insurance, and while there said agent called upon appellees at their place of business, and solicited from them, and then and there obtained from them, two written applications to said company for two policies of insurance of $ 1,000 each; that applications were signed by appellees, and then and there delivered to said agent; that by the terms of said applications notes were to be given, which said agent stated would be sent to appellees by the company for execution; that thereafter said company, in accordance with said application, forwarded to appellees one of its forms of notes and written applications, which contained a description of the property as it was written in the first application made by appellees and delivered to said agent at said city of Anderson, and at the bottom thereof and attached to said second application was also a promissory note filled out for $ 200; that appellees signed said note, in accordance with their former written agreement so to do, and returned it to said insurance company; that shortly thereafter said company delivered to appellees at Anderson,...
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