The Hanover Fire Insurance Co. v. Johnson
| Decision Date | 08 May 1900 |
| Docket Number | 2,917 |
| Parties | THE HANOVER FIRE INSURANCE COMPANY v. JOHNSON |
| Court | Indiana Appellate Court |
Rehearing denied January 22, 1901.
From the Delaware Circuit Court.
Reversed.
S. N Chambers, S. O. Pickens and C. W. Moores, for appellant.
J. W Ryan and W. A. Thompson, for appellee.
Counsel for the appellee in their brief have suggested that the assignment of errors is insufficient. The appeal was taken in term, and, within the required time after the filing of the appeal bond, the transcript was filed in the office of the clerk of this court, on the 29th of August, 1898. The cause was submitted under the rule, September 28, 1898, and on the 5th of November, 1898, the appellant's brief was filed. By rule twenty-one of this court the appellee is required to file a brief upon the assignment of errors made by the appellant within ninety days after the submission of the cause. The appellee failed to comply with this rule, and the clerk, on the 10th of August, 1899, pursuant to rule thirty-two, gave notice to the appellee, to enforce the return of the papers. On the 2nd of October, 1899, more than a year after the submission, the appellee filed his brief, in which he criticizes the assignment of errors. Manifestly, the appellee by delay forfeited all right to consideration of such a matter on his behalf, and unless we find the assignment so defective that, without any suggestion on the part of the appellee, it should be deemed by us so wanting in substance as not to present any question, we must treat it as a sufficient assignment. We find the assignment somewhat lacking in proper formality, but its meaning can not be mistaken, and it can not be regarded as so defective that upon our own motion it would be treated as insufficient. It is therefore not necessary to set out the assignment, or to treat the matter as a question properly raised for decision. A motion filed by the appellant to amend the assignment and make it more definite in form is insufficient, because of failure to show any reason for neglect to make the correction before submission; but we will treat the proposed amendment as unnecessary.
The action was based upon a policy of fire insurance issued by the appellant, the Hanover Fire Insurance Company of the city of New York, to Annie Wiley, owner of the insured property, and by her assigned to the appellee after the destruction of the property by fire. The complaint was in two paragraphs, but before trial the action was dismissed as to the first paragraph. A demurrer to the second paragraph for want of sufficient facts was overruled. It is claimed in argument that this ruling was erroneous "for the reason that there is no averment in the complaint of the performance of conditions subsequent, as set out in the policy, by the holder of the policy, and no averment of denial of liability by the defendant company to the holder of the policy and owner of the policy at the time of the fire." And reference is made by counsel to a provision of the policy that "if fire occur, the insured shall give immediate notice of any loss thereby in writing to" the insurance company, and that within sixty days after the fire, unless the time should be extended in writing by the company, the insured should render to the company proof of loss, etc.
The destruction of the building by fire was alleged to have occurred on the 24th of January, 1897. In the second paragraph of complaint it was shown that the insured "duly kept and performed all the conditions and requirements imposed upon her to be kept and performed by said policy." There were also averments that, immediately after the destruction of the building, the insured and the appellee notified the appellant of the "destruction of said dwelling-house by fire and of said loss, to wit, on the -- day of January, 1897; that thereupon, immediately after said notice of said loss, said defendant, the Hanover Insurance Company, refused to pay the sum so secured by said policy, and the loss sustained by said Wiley, by reason of the destruction of said building by fire, or any part or portion thereof, and immediately after said notice of said loss, said insurance company denies any and all liability by reason of said loss and destruction of said property by fire, and on account of and by virtue of its said policy."
Our civil code provides, that in pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally that the party performed all the conditions on his part; and that if the allegation be denied, the facts showing a performance must be proved on the trial. § 373 Burns 1894, § 370 Horner 1897. The provisions for notice of loss and for proof of loss are conditions relating to matters following the loss insured against, which operate upon the contract of insurance only subsequent to the loss, but they are usually called conditions precedent to the right of recovery, and are within the meaning of the provisions of the code relating to the pleading of performance of conditions precedent.
Under such a policy as that before us, notice in writing within a reasonable time after the loss by fire, unless waived by the insurance company, was a condition precedent to the right to recover for the loss. Germanias Ins. Co. v. Columbia, etc., Co., 11 Ind.App. 385, 39 N.E. 304; Insurance Co. v. Brim, 111 Ind. 281, 12 N.E. 315; Pickel v. Phoenix Ins. Co., 119 Ind. 291, 21 N.E. 898.
The furnishing of proof of loss as required by the policy is a condition precedent to the plaintiff's right of recovery. Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N.E. 285.
It was incumbent upon the plaintiff to show in pleading and in evidence that all conditions precedent to the right to recover had been performed, or to show a waiver or other sufficient excuse for their non-performance. Germania Ins. Co. v. Deckard, 3 Ind.App. 361, 28 N.E. 868; Baker v. German Ins. Co., 124 Ind. 490, 24 N.E. 1041.
The rule of pleading, that specific averments shall control general ones, applies only where there is a necessary conflict between them. Germania Ins. Co. v. Deckard, 3 Ind.App. 361, 365, 28 N.E. 868.
Where the specific allegations of the complaint show that the general allegation of performance on the part of the plaintiff is not true, such inconsistency renders the complaint insufficient. Baker v. German Ins. Co., 124 Ind. 490, 24 N.E. 1041.
The complaint, as above indicated, contained a general averment sufficient under the provision of the statute above mentioned, and allegations of particular facts constituting performance on the part of the insured were not needed. American Ins. Co. v. Sweetser, 116 Ind. 370, 19 N.E. 159. The complaint therefore was not insufficient as claimed by the appellant, unless the allegations of particular facts are necessarily inconsistent with the general averment; and we think the particular averments have not such effect. The court, therefore, did not err in its ruling upon the demurrer. Aetna Ins. Co. v. Kittles, 81 Ind. 96; Underwriters v. Durland, 123 Ind. 544, 7 L. R. A. 399, 24 N.E. 221; American Ins. Co. v. Leonard, 80 Ind. 272; Phoenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N.E. 546, 12 Am. St. 393; Germania Ins. Co. v. Deckard, 3 Ind.App. 361, 28 N.E. 868.
It is alleged in the complaint that Annie Wiley, the insured, after the fire and before the bringing of this action, assigned and transferred to the appellee ...
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