The Germania Fire Insurance Co. v. Deckard
| Decision Date | 13 October 1891 |
| Docket Number | 405 |
| Parties | THE GERMANIA FIRE INSURANCE COMPANY v. DECKARD |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled Jan. 9, 1892.
From the Monroe Circuit Court.
Judgment reversed.
S. N Chambers, S. O. Pickens, C. W. Moores and C. R. Worrall, for appellant.
R. A Fulk, E. Corr and J. R. East, for appellee.
This action was brought by John Deckard against the Germania Fire Insurance Company, upon a policy of fire insurance issued by the latter.
The complaint was in two paragraphs, to which a separate demurrer was filed and overruled.
The answer contained ten paragraphs, and a demurrer was sustained to the second, third, fourth, fifth, sixth, seventh and ninth, and overruled as to the others.
A jury trial was had and a special verdict returned, and motions by the defendant for a venire de novo, for judgment in its favor upon the verdict, and for a new trial were successively made and overruled, and judgment was awarded plaintiff upon the verdict.
The assignments of error properly present for review the several rulings of the trial court upon the demurrers and motions.
Counsel for appellant first insist that the first paragraph of complaint is not sufficient to withstand the demurrer.
The averments of this paragraph are substantially these: The plaintiff was the owner of a one-story, shingle-roof, box-frame dwelling-house, in Monroe county, Indiana, which was occupied by a tenant, and, in consideration of a premium of three dollars to it in hand paid, the defendant of the 2d day of November, 1889, by its policy of fire insurance, which was filed with and made part of the complaint, insured said dwelling-house against loss or damage by fire, in the sum of three hundred dollars, for the term of three years from said date; that the plaintiff "performed all of the conditions on his part to be performed, and on the 16th day of May, 1890, said house was totally destroyed by fire; that plaintiff immediately thereafter, on the day of June, 1890, notified the defendant of said loss, and more than ninety days before the bringing of this suit gave defendant due proofs of said loss."
It was further alleged that plaintiff was the owner of the house at the time it was destroyed, and it was of the value of three hundred dollars, and that the amount of the policy was due and unpaid.
Among other provisions, the policy contained the following: "Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the company."
The point is raised against this paragraph of complaint that it does not show a compliance with the above provision of the policy.
It was incumbent upon the holder of the policy to allege and prove a performance of all the conditions precedent to his right to recover, or show a waiver or other sufficient excuse for their non-performance.
Section 3770, R. S. 1881, makes conditions inserted in insurance policies issued by foreign insurance companies, requiring notice of loss to be given forthwith, or within less than five days, null and void. The effect of this section, as construed by the Supreme Court in the case of Insurance Co. of North America v. Brim, 111 Ind. 281, 12 N.E. 315, is to render provisions for notice forthwith, or within less than five days, conclusively unreasonable, but to require the insured to use reasonable diligence in giving notice of loss.
An elementary rule of pleading requires that averments shall be most strongly construed against the pleader, and under the influence of this rule, in the absence of other controlling allegations, the blank date should be supplied by constructively inserting the last day of the month.
A general averment of the performance of all conditions upon the part of the insured, required by the terms of the contract, is ordinarily sufficient.
This averment is in the complaint under consideration, but it precedes the allegations of loss, and counsel insist that it qualifies only the antecedent averments, and is therefore of no value as showing a performance of conditions required after the loss.
It was the evident intention of the pleader that it should apply to and qualify his conduct to the time of the commencement of the action, and, notwithstanding its dislocation, we are inclined to give it that construction. Another elementary rule of pleading requires that specific averments shall control general ones, but this is applicable only where there is a necessary conflict between them. If the date of giving notice had been supplied by the pleader, it would determine the sufficiency of the complaint upon this question, notwithstanding the general averment of the performance of conditions. Baker v. German Fire Ins. Co., 124 Ind. 490, 24 N.E. 1041.
But we do not think the rule can be carried to the extent that specific averments like the one under consideration may be enlarged by construction so that they shall control and render nugatory general averments which would otherwise be sufficient.
Pleadings should be construed in such a manner as to reconcile and harmonize the various allegations, where it can be done without doing violence to the laws of language, and, under the operation of this principle, the general averment of performance would so modify the specific averment in the complaint under consideration as to require the blank to be supplied by inserting the first day of the month, if this will make the complaint good.
Under this construction it would appear that notice of loss was given fifteen days after it occurred, and in the presence of the averment that it was given forthwith, and of the performance of conditions we can not say, as a matter of law, that it was not within a reasonable time. The complaint seems to have been very carelessly prepared, but we are inclined to hold it good.
The next alleged error relied upon for a reversal of the judgment relates to the decision of the court in sustaining the demurrer to the seventh paragraph of answer. This paragraph alleged that the insured building was described in the policy as a "one-story, shingle-roof, box and frame building, meaning that said building was one story high, and was covered with shingles, and was constructed in box-shape; that is, planks nailed upon a wooden frame, said planks standing endwise up and down said building;" that the insured stated and represented such facts to be true, and the company relied upon such statements and representations and was induced thereby to assume the risk; that said statements and representations were false and made to deceive the company, and to fraudulently procure the insurance; that said building was not as represented, but was "constructed of logs cut and laid one upon another, having but a slight box-frame addition thereto," and it was covered with "clap-boards" instead of shingles.
It was also alleged that the policy contained a provision making the insurance void for any fraud, false representation or concealment of facts by the assured relative to the condition, situation, use or occupancy of the building.
There is an attempt in this paragraph to enlarge the meaning of the descriptive terms of the policy by averment, and to make this enlarged meaning the basis of a defence. This is unauthorized by the universal law of contracts and pleadings. The parties are bound by the ordinary and natural import and meaning of the language employed in the contract, and, if it is susceptible of two constructions, that which is the most favorable to the assured shall prevail. Rogers v. Phenix Ins. Co., 121 Ind. 570, 23 N.E. 498; Wallace v. German Am. Ins. Co., 41 F. 742.
Then this answer clearly proceeds upon the theory of false representations and concealment of facts which induced the company to assume the risk.
Fraud and misrepresentations in the procurement of a contract, when pleaded as such, will not authorize its overthrow or rescission unless they relate to and affect some material feature of the transaction. In insurance contracts, only that can be regarded as material which, from a business standpoint, may have influenced the insurer in undertaking the risk.
There is nothing in this answer to show that the hazard was increased a farthing on account of the alleged misrepresentations, or that the company would have refused it or charged a higher premium for carrying it if it had known the truth.
What the result would have been if the facts set out in the answer under consideration had been made the basis of a defence, on the ground of a breach of warranty, it is unnecessary to say. There was no error in sustaining the demurrer to it, as it stood.
The policy provided that the insurance should be void should there be any "increase of hazard by change of use, or occupancy, vacancy, or non-occupancy," unless specially agreed to by the company in writing.
The ninth paragraph of answer alleged that the building was insured as a dwelling-house only, and after the execution of the policy, without the knowledge or consent of the company the use of the building was changed by the insured, "in this, that said building was not used for a dwelling only,...
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