The Indiana Farmers' Live Stock Insurance Company v. Byrkett

• Decision Date: 09 March 1894
• Docket Number: 978
• Citation: The Indiana Farmers' Live Stock Insurance Company v. Byrkett, 36 N.E. 779, 9 Ind.App. 443 (Ind. App. 1894)
• Parties: THE INDIANA FARMERS' LIVE STOCK INSURANCE COMPANY v. BYRKETT
• Court: Indiana Appellate Court

36 N.E. 779

9 Ind.App. 443

THE INDIANA FARMERS' LIVE STOCK INSURANCE COMPANY v. BYRKETT

No. 978

Court of Appeals of Indiana

March 9, 1894

From the Cass Circuit Court.

Judgment reversed, at costs of appellee.

R Magee and G. W. Funk, for appellant.

S. T McConnell and A. G. Jenkins, for appellee.

OPINION

LOTZ, J.

The appellee brought this action on a policy of insurance, to recover the loss sustained on account of the death of a stallion insured within the terms of the policy.

The policy was issued March 16, 1892, and insured the stallion in the sum of $ 300 for the period of one year.

The complaint declared on the policy, to which the appellant answered in three paragraphs; the first being the general denial; the second and third pleaded substantially the same defense, alleging, in substance, that certain answers made by the appellee in his application for the insurance, as to the condition and health of the horse, were false, and were made for the purpose of deceiving and defrauding the appellant.

To these answers, the appellee replied in three paragraphs; the first being the general denial, and the second and third pleaded substantially the same facts, viz: That the application for the insurance in controversy was made out by one Clossan, who was, at the time, the agent and general manager of the appellant; that the answers to the questions contained in the application, which, the answers aver, were false, were not the answers made by the appellee; that the appellee relied upon the said Clossan, as such agent and general manager, to record and fill in appellee's answers in said application, as made by appellee; that said Clossan did not write the answers made by the appellee, but wrote false answers in said application; that the appellee did not read the application before signing the same, but relied upon the said Clossan to record said answers truthfully.

Appellee obtained a verdict in the sum of $ 300, on which judgment was rendered.

The errors assigned and discussed by appellant are:

1. That the court erred in overruling the demurrer to the complaint.

2. That the court erred in overruling appellant's motion for a new trial.

The only objection urged against the complaint is that it does not contain or set out a copy of the application for the insurance, which, by the terms of the policy, is made a part thereof.

It is settled by the adjudications in this State, that it is not necessary to file a copy of the application with the complaint. Phoenix Ins. Co. v. Stark, 120 Ind. 444, 22 N.E. 413 (448), and cases there cited.

Appellant contends that the appellee, in the progress and trial of the cause in the court below, violated the well known doctrine that a cause must proceed upon a single, definite theory; must be tried, and judgment pronounced upon such theory. It is insisted that the complaint proceeds upon the theory that a sound horse was injured; that the reply departs from this theory, in that it changes the theory so as to attempt to recover for an unsound horse.

It is true that every pleading, be it complaint, answer or reply, must be constructed upon a single definite theory, and it is the duty of the trial court, in the progress of the cause, and in pronouncing final judgment, to proceed upon and follow the theories of the pleadings. It frequently occurs in contested cases, that the court must deal with various theories presented by different pleadings.

The unmistakable controlling purpose and theory of the complaint is to recover the sum of money for which the horse was insured. Whether the horse was sound or unsound, is but an incident to the theory of the complaint. The condition of the horse, as to being afflicted with diseases at the time the insurance was effected, was first brought into the controversy by the answer of the appellant. If the appellee should be debarred from meeting this condition in his reply, because he might thereby depart from the theory of his complaint, would give the appellant an undue advantage. Under such a rule, a plaintiff would be required to so frame his complaint as to anticipate all possible defenses.

On the trial, the appellee testified, in rebuttal, that at the time the insurance was effected he told the agent that the horse was well so far as he knew, except he had a cold, a cough, and nasal trouble.

The appellee also called four witnesses who testified in rebuttal, over appellant's objection, that the horse was well at or about the time the policy was taken out. One of the causes for a new trial is that the court erred in permitting these four witnesses to so testify, after the admission of the appellee as contained in his own testimony, and in the second and third paragraphs of his reply. It is insisted that such admissions were conclusive upon the appellee, and that it was error to admit other evidence which tended to show that the horse was well. Under the issues joined, the condition of the horse, at the time the insurance was effected, was important, and both appellant and appellee were interested in showing the state of health of the horse.

Appellant's objection to this testimony was not based upon the fact that it contradicted an admission made by the appellee either in his testimony or in his pleadings, but the basis of the objection was that such testimony was a part of the appellee's original case. There was no reversible error in admitting this evidence. As bearing upon this question of admission, the appellant requested the court to give this instruction to the jury: "If you find from the evidence, that the plaintiff admits that his horse was diseased at the time he made his application for, and received, his insurance, such admission, if you should find that the plaintiff has done so, would bind him upon that issue, and it is not competent for the plaintiff to prove by other witnesses, that his horse was not diseased at the time."

The court refused to give this instruction. There was no error in this. This instruction did not direct the jury to disregard the testimony of other witnesses given upon this point, or withdraw such testimony from the jury. It deals with the question of the admissibility of this testimony and the competency of the witnesses. Questions of the admissibility of evidence, and of the competency of witnesses, are questions for the court, and not for the jury. The instruction must be treated as an entirety. If it is erroneous in any respect, there was no error in refusing to give it.

Another cause for a new trial was the refusal of the court to give instruction No. 4, asked by appellant. The court, however, did give appellant's instruction No. 5, which, in substance and effect, is the same as the one refused.

The court also refused to give this instruction, asked by appellant: "If you find from the evidence, that the plaintiff made a written application to the defendant for insurance, and if you further find that any material fact or circumstance stated in writing was not fairly represented by the plaintiff, and the defendant was misled thereby, and thereby induced to deliver to the plaintiff a policy of insurance, or if any of the answers contained in such application were untrue, then, if such facts exist, your verdict should be for the defendant."

The application for the insurance, signed by the appellee, and which was made a part of the policy, contained certain statements of the appellee, in which he...