The North British And Mercantile Insurance Co. v. Crutchfield

• Decision Date: 17 December 1886
• Docket Number: 12,321
• Parties: The North British and Mercantile Insurance Company v. Crutchfield et al
• Court: Indiana Supreme Court

9 N.E. 458

108 Ind. 518

The North British and Mercantile Insurance Company v. Crutchfield et al

No. 12,321

Supreme Court of Indiana

December 17, 1886

From the Posey Circuit Court.

The judgment is affirmed, with costs.

A Gilchrist, C. A. De Bruler and W. P. Edson, for appellant.

H. C Pitcher, for appellees.

OPINION

Howk, J.

In this case, the only error relied upon here by appellant, the defendant below, for the reversal of the judgment of the trial court, is the overruling of its demurrer to appellees' evidence.

The action was upon a policy of insurance, executed by appellant and countersigned and issued by its duly authorized agent at Mount Vernon, Indiana, on the 9th day of February, 1882, to one Thomas J. Gordon; whereby appellant, in consideration of a certain premium, did insure the said Gordon, against loss or damage by fire to his property therein described, in the sum of $ 1,600, for the term of three years from and after the date of the policy, as follows: $ 1,000 on his one-story frame dwelling-house; $ 200 on his household and kitchen furniture, and $ 400 on his one-story frame store-room, all occupied by him and situated on his farm, on the Mount Vernon and Uniontown road, in Henderson county, Kentucky. It was alleged by appellees in their complaint, that, on the 20th day of August, 1884, said dwelling-house was wholly consumed by fire, and the furniture damaged by such fire in the sum of $ 100; that at the time of such loss, Thomas J. Gordon was the owner of the property so destroyed and damaged, and fully performed all the conditions of the policy on his part; and that, on September 1st, 1884, Gordon assigned in writing the aforesaid policy to appellees. Wherefore, etc.

Issue was joined by appellant's answer in general denial.

Counsel on both sides concur in stating that the only evidence introduced by appellees, in support of their cause of action, was the policy of insurance and its assignment, and the oral testimony of Thomas J. Gordon. On behalf of the appellant, its counsel insist that the evidence wholly fails to show that the assured had complied with the conditions of his policy, which required him to render a particular account of his loss, signed and sworn to by him, stating whether any and what other insurance had been made on the same property, etc. On the other hand, appellees' counsel contends, that the conduct of the adjuster, and general agent of the appellant, towards the assured, as shown by his testimony on the trial, was such as to dispense with, or constitute a waiver of, any compliance by the assured with the conditions of his policy requiring him to render a particular account of his loss. We give, in this connection, from the brief of appellant's counsel, the entire testimony of the assured, Thomas J. Gordon, on the trial of this cause, as follows:

"The house mentioned in the policy belonging to me burned on the 20th day of August, 1884, at 10 o'clock in the morning after breakfast. It was a total loss, and part of the furniture in the house also burned. We saved some of it. It left us out-doors, and we batched in a tent. I came to John L. Rosencrans, the local agent of the company at Mount Vernon, Ind., and told him of the loss. I sent word to him before that by David Barker. When I told Rosencrans of the loss he said it was best to wait until Mr. T. H. Smith, the adjuster of the company, came, that he (Rosencrans) had nothing to do of that kind, and that the adjuster would be here shortly. I waited eight or ten days, and came down again to see Rosencrans, when I asked him if the North British and Mercantile Insurance Company had gone into bankruptcy. Rosencrans replied that he had just received a telegram from Mr. Smith that he would be at Mount Vernon that night, and for him (Rosencrans) to prepare for a ride to-morrow. He came, and they went over the river from Mount Vernon to the premises where the house burned. The next day or two after that, on Monday, I saw Mr. Smith, the adjuster and general agent, in Mr. Rosencrans' office in Mount Vernon. He (Smith) asked me if I had made out plans and specifications and proofs of loss; that the company required them to be made. I said I am ready to make proof of loss or any other papers he wanted. He would not furnish me any papers for that purpose, and he refused to give me any instructions or satisfaction. I told him I would make them out in ten days. He said it would take thirty days. After that I tendered my account of losses to Rosencrans. He refused to take them. Rosencrans told me I must send them to the company at Chicago, and offered to furnish me an envelope with the address to send it in. Mr. Smith asked me if I had filed plans and specifications of the building burned and proof of loss. I filed my account of loss with Rosencrans, or offered to do so, the second day after Mr. Smith was in Mount Vernon, and Rosencrans refused to take them. Mr. Smith told me there were a couple of stoves saved from the building, and asked me to take care of the stoves and a piece of the sills of the house until the suit, so they could be produced at the trial if we had a suit. I saved a piece of the sill and intended to have it here to-day. I sent for it, but it is not here. I was owner of the house and furniture at the time of the loss."

And said witness, being cross-examined by the defendant, testified as follows:

"Mr. Smith, the adjuster, was here about three weeks after the 20th day of August, 1884, the day the house burned. It was four or five days after the fire that I saw John L. Rosencrans, and told him of the loss. I only saw Mr. Smith twice. I talked with him twice only; both times at Mr. Rosencrans' office, in the Posey County Bank. John L. Rosencrans, Luke Rosencrans and William D. Crunk were the only persons present at those two conversations. They were there when the conversations took place, except that W. D. Crunk was not present all the time, and John and Luke Rosencrans were. The policy of insurance was then in the Posey County Bank. At that time Mr. Smith told me to send the plans and specifications of the house and the proofs of loss to Chicago; that Mr. Rosencrans would furnish me a printed envelope to send them in; that Mr. Rosencrans had no right to receive them, and that they must be sent by me to the company at Chicago, and I must put it into the postoffice myself. Mr. Smith said to me that he required plans and specifications of the house burned. I told him I was ready to furnish them. I never made or furnished any plans or specifications. I tendered plans and specifications and proof of loss to Rosencrans two days after Smith was here, and he refused to take them."

Re-direct examination:

"Mr. Smith asked me if I had filed plans and specifications and proof of loss. I said I would file them in two days. He replied you can't file them that soon--it will take you thirty days. He told me I must send them to Chicago. I said I would file them day after to-morrow. He said if you do make them out they will not be right, and said he would send them back, and keep sending them back until they were right. I said I am ready to file papers to Rosencrans, and Rosencrans said he would not take them; that he had nothing of that kind to do; that he would furnish me a printed envelope for me to send them to Chicago, and I must mail it myself at the postoffice. Mr. Smith said he would return them as long as I sent them, if they were not right."

In considering the sufficiency of the evidence to sustain the decision of the circuit court, in overruling appellant's demurrer to appellees' evidence, it must be borne in mind that, by its demurrer, appellant admitted all facts of which there was any evidence, and all conclusions which can, fairly and logically, be drawn from such facts. In passing upon and deciding the questions presented by a demurrer to the evidence, the court must consider not only all the facts which the evidence tends to establish, but also all such fair and reasonable inferences of fact, as the jury, if trying the cause, might have lawfully drawn from such evidence. The rule as we have stated it, which controls in the consideration and decision of a demurrer to evidence, is declared in and sustained by many of our reported cases. Trimble v. Pollock, 77 Ind. 576, and cases cited; Willcuts v. Northwestern Mutual Life Ins. Co., 81 Ind. 300, and cases cited; McLean v. Equitable Life Assurance Society, etc., 100 Ind. 127 (50 Am. R. 779), and cases cited; Lake Shore, etc., R. W. Co. v. Foster, 104 Ind. 293 (54 Am. R. 319, 4 N.E. 20).

In the case last cited, in laying down the rules to be applied by the courts, in passing upon a demurrer to evidence, the first rule is thus stated: "First. A demurrer to the evidence admits all facts which the evidence tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence." See, also, the numerous authorities there cited in support of this first rule.

Having thus stated the rules which must govern us, in passing upon appellant's demurrer to appellees' evidence, we pass now to the consideration and decision of the particular points or questions, upon which appellant's counsel rely with much apparent confidence, for the reversal of the judgment. We have already stated, but will here repeat, what we regard as the principal point, urged by appellant's counsel for the reversal of the judgment herein, in their own language, as follows: "It was necessary, before plaintiffs could recover, for them to show that the assured had complied with the conditions of his policy, which required him to render a particular account of his loss, signed and sworn to by him, stating whether any...