The Home Insurance Company of New York v. Marple

• Decision Date: 13 May 1891
• Docket Number: 47
• Citation: 27 N.E. 633,1 Ind.App. 411
• Parties: THE HOME INSURANCE COMPANY OF NEW YORK v. MARPLE
• Court: Indiana Appellate Court

27 N.E. 633

1 Ind.App. 411

THE HOME INSURANCE COMPANY OF NEW YORK v. MARPLE

No. 47

Court of Appeals of Indiana

May 13, 1891

From the Fountain Circuit Court.

Judgment reversed, at the costs of the appellee, with instructions to the trial court to grant a new trial.

F Winter, J. B. Elam and H. H. Dochterman, for appellant.

W. D Durborow, J. McCabe and E. F. McCabe, for appellee.

OPINION

CRUMPACKER, J.

The Home Insurance Company of New York issued a policy of fire insurance to Benjamin F. Marple on the 31st day of December 1884, for $ 2,000, covering certain buildings and a stock of merchandise. The policy ran for one year from its date, and within its lifetime the entire property covered by it was destroyed by fire. The company declined to pay the loss and suit was brought upon the policy.

Among other provisions the policy contained the following: "If the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written thereon, then this policy shall be void." Also: "8. This insurance may be terminated at any time, at the request of the insured, in which case the company shall retain only the customary short rates for the time the policy has been in force. This insurance may also be terminated at any time, at the option of the company, on giving notice to that effect, and refunding a ratable proportion of the premium for the unexpired term of the policy."

An answer was filed to the complaint, setting up, with other defences, the fact that about the 1st day of March, 1885, the insured took out two other policies of insurance covering the same property covered by the policy sued upon, without the consent of this company, and in violation of the condition against additional insurance. Wherefore, it was claimed the policy in suit became void.

To this answer of forfeiture, the plaintiff replied that he notified the defendant company of the fact of such other insurance, at once upon procuring the same, and such company made no objection thereto, but allowed its policy to run uncancelled for seven months, until the loss occurred, and during all of that time had full notice of such other insurance, and failed to return any of the premium, and that the plaintiff relied upon the validity of the policy, and so relying failed to procure a sufficient amount of other insurance to indemnify him. Wherefore, he claimed the forfeiture arising upon the breach of the condition against other insurance was waived.

A demurrer was filed to this reply, and overruled, and the cause was tried, and resulted in a verdict and judgment for the policy-holder for $ 500.

A motion for a new trial was filed and overruled.

The first question which claims our attention is the alleged error in overruling the demurrer to the reply.

It is claimed upon behalf of appellant that by the terms of the policy it became absolutely void when the subsequent insurance was taken out, without consent endorsed upon the policy, and the mere silence of the appellant after knowledge of such subsequent insurance, did not operate as a waiver of the forfeiture; in short, that the condition against other insurance was absolute, and ex vi termini destroyed the validity of the policy.

To declare that the law views forfeitures with disfavor is but to repeat a proposition as familiar to the lawyer as the Golden Rule should be to the student of moral philosophy. It must be admitted that the pronounced tendency of modern adjudications is to relieve contracting parties from the hardships resulting from technical forfeitures whenever it can be done without violating the substantial rights of the parties to the contract. Conditions against other insurance contained in policies, although coupled with clauses of forfeiture absolute and positive in terms, are now construed as voidable only, and the insurer with notice of additional insurance, in order to work a forfeiture on that account, must in some satisfactory manner declare his disaffirmance or he will be presumed to have given consent and waived the forfeiture. Thus it was said by the court in Havens v. Home Ins. Co., 111 Ind. 90, 12 N.E. 137: "Having knowledge of the other insurance the company may manifest its dissent by cancelling its policy; otherwise it will be treated as having assented, and waived compliance with the condition."

In the case of Phenix Ins. Co. v. Boyer, ante, p. 330, in an exhaustive opinion by ROBINSON, J., the authorities upon this question are reviewed and the modern doctrine reaffirmed with much emphasis, so we must regard the question as firmly settled in this State. It follows that no error was committed in overruling the demurrer to the reply.

Upon the trial the only evidence adduced tending to prove that the appellant was notified of the other insurance was the testimony of the appellee, to the effect that the day after procuring such other insurance he wrote a letter to Messrs. Ducat & Lyons, the general managers of the appellant's business at Chicago, Illinois, informing them of the fact, which letter he enclosed and sealed in an envelope, properly addressed to said managers, giving their street and number, and that he stamped such letter with sufficient United States postage, and mailed it at the post-office at State Line City, Indiana. No answer was ever received to the letter, and the appellee had no knowledge that it had been received except what he might infer from having so written and mailed the letter. The general managers of the appellant, to whom the letter was addressed, denied ever having received it, or any other notice or intimation of the procuring of other insurance until after the loss.

Upon the question of notice the court instructed the jury as follows:

"If the jury find that plaintiff, next day after taking out such other insurance, wrote a letter to Ducat & Lyons, general managers of defendant's insurance business at Chicago, Illinois, notifying them of such other insurance, and that said letter was properly enclosed in an envelope which was properly addressed on the back of said envelope to said Ducat & Lyons, Chicago, Illinois, giving the street and number where their said office was then situate in said city where they did defendant's insurance business, and that said letter was duly stamped with the necessary United States postage stamp or stamps, sealed and deposited in the post-office, at State Line City, Indiana, on said day, by said plaintiff, then the presumption of fact, from the known course of business in that department of public service, is that said letter reached said office of Ducat & Lyons at the regular time, and was received by the persons to whom it was addressed."

Exceptions were duly taken to this instruction by the appellant, and the question arising upon the exceptions is properly before us for decision.

It is argued, with much force and energy by the appellant's counsel, that the instruction undertakes to direct what inferences may be drawn from certain facts in evidence, and in that respect it invades the province of the jury, and was erroneous.

Where the evidence is undisputed upon an essential fact in a case and but one inference may properly be drawn from it, the court may so instruct the jury, and to...