The Phenix Insurance Co. v. Pickel

• Decision Date: 27 May 1889
• Docket Number: 13,561
• Citation: 21 N.E. 546,119 Ind. 155
• Parties: The Phenix Insurance Company, of Brooklyn, v. Pickel
• Court: Indiana Supreme Court

21 N.E. 546

119 Ind. 155

The Phenix Insurance Company, of Brooklyn, v. Pickel

No. 13,561

Supreme Court of Indiana

May 27, 1889

From the Knox Circuit Court.

Judgment affirmed.

J McCabe and E. F. McCabe, for appellant.

W. A Cullop, G. W. Shaw and C. B. Kessinger, for appellee.

OPINION

Coffey, J.

This was an action by the appellant against the appellee, brought in the Knox Circuit Court, to review a judgment. The court sustained a demurrer to the complaint, and the appellant assigns for error this ruling of the circuit court. A complete transcript of the judgment sought to be reviewed is filed with the complaint, and it is alleged that said judgment is erroneous in the following particulars, viz.:

1st. That the court erred in sustaining the demurrer of the then plaintiff to the second paragraph of the answer of the defendant.

2d. That the court erred in sustaining the demurrer of the then plaintiff to the third paragraph of the answer of the then defendant.

3d. That the court erred in sustaining the demurrer of the then plaintiff to the seventh paragraph of the answer of the then defendant.

4th. That said court erred in awarding the open and close of the case to the then plaintiff.

5th. Error in overruling the motion for a new trial.

9th. Error of the court in overruling the motion in arrest of judgment.

12th. Error of the court in not sustaining the demurrer filed to the answers back to the complaint.

It is urged by the appellant, under the ninth and twelfth assignments of error, that the complaint in the original cause was bad.

The action was prosecuted on a policy of insurance issued by the appellant to the appellee, whereby the appellee was insured against loss or damage by fire on the property described in the policy. There was no demurrer to the complaint, and the question of its sufficiency is sought to be raised in this action for a review of the judgment based thereon.

It is contended by the appellant that to make the complaint good the appellee should have averred that the property, during the existence of the policy, never became vacant, and that it was occupied at the time it was destroyed by fire; that the appellee had an insurable interest; that the warranties contained in the application for the policy were true; and that the property had not been used for any purpose prohibited by the policy.

The policy of insurance in this suit covers several separate buildings, a barn, farming implements, hay, grain, stock, etc., and it is averred in the complaint that on the 29th day of December, 1885, said barn, and the farming implements, hay, grain, stock, etc., covered by said policy, and in said barn at the time, were destroyed by fire, without the fault of the assured. It thus sufficiently appears by the complaint that said building was occupied at the time of its destruction. It is also averred that the property insured was the appellee's property at the time said policy was issued; that it was on his premises, in said barn, at the time it was destroyed by fire, and that the appellee was damaged to the value thereof. It is also alleged in the complaint that the appellee performed all the terms of said contract of insurance on his part. We are, therefore, of the opinion that the complaint is sufficient to withstand the attack now made upon it, and that it states a cause of action against the appellant. Home Ins. Co. v. Duke, 75 Ind. 535; section 370, R. S. 1881; Mason v. Seitz, 36 Ind. 516; Bertelson v. Bower, 81 Ind. 512; AEtna Ins. Co. v. Kittles, 81 Ind. 96; Board, etc., v. Hammond, 83 Ind. 453; Lowry v. Megee, 52 Ind. 107.

Where a policy of insurance contains conditions and warranties like those contained in this policy, it is sufficient for the plaintiff to show fulfilment of the conditions of recovery which are made such by the contract itself. The burden is then upon the defendant to set forth and prove the untruthfulness of the representations, if there are any such, upon which he relies. The plaintiff need not aver the truth of statements contained in the application, nor the performance or non-performance of conditions subsequent, nor negative prohibited acts. May Insurance, sections 183, 590; Northwestern Mut. Life Ins. Co. v. Hazelett, 105 Ind. 212, 4 N.E. 582.

It is next urged that the court erred in sustaining a demurrer to the second, third and seventh paragraphs of the answer of the appellant to the original complaint.

The second paragraph of the answer avers that the policy of insurance in suit was issued upon a written application of the plaintiff to the defendant therefor, a copy of which application is filed with this answer; that in said application the plaintiff stated that dwelling-house No. 1, embraced in said application and policy, was only twelve years old, which statement he warranted to be true in said application, whereas, in truth and in fact, said dwelling No. 1 was then and there older than that, to wit, fifteen years old, whereby said plaintiff broke said warranty, and said policy became void.

The third paragraph alleges that the policy in suit was issued on the written application of the plaintiff; that in said application the plaintiff stated that dwelling No. 1 was in good condition, whereas, in truth and in fact, said house was in a very bad condition, there being openings in the walls so large that a cat could easily go in and out through such openings at pleasure; that the house was an old, dilapidated log hut, in bad fix generally, and thereby said warranty was and is broken, and said policy void.

The seventh paragraph of the answer averred that, after the execution of said policy, there was a judgment recovered against the plaintiff by Hebberd for $ 266.87 by the consideration of the Knox Circuit Court, which was duly recorded in the office of the clerk of said Knox Circuit Court, and the same became a lien upon said land whereon the property insured was situate, which is a breach of the covenant against encumbrances, and which makes the policy void by its own provisions.

The provisions of the policy of insurance, material to the inquiry here, are as follows:

"By this policy of Insurance, the Phenix Insurance Company, of Brooklyn, New York, in consideration of ----- dollars cash, and the payment at maturity of thirty-one dollars for which the insured hereinafter named has executed a certain promissory note or obligation of even date herewith, and payable on the 1st day of December, 1885, does insure Pleasant Pickel, Esq., against loss or damage by fire or lightning to the amount of nineteen hundred dollars, as follows:

"$ 300 on one-story, board roof, log and frame building, occupied by assured as a dwelling.

"$ 100 on household furniture, etc.

"$ 100 on one-story, board roof, log dwelling, occupied by tenant.

"$ 300 on shingle roof, log and frame barn.

"$ 50 on hay in barn.

"$ 400 on reapers, mowers, etc.

"$ 200 on grain in granaries or barn, etc.

"$ 200 on horses, mules, etc.

"$ 50 on hay in stack, etc.

"$ 200 on board roof, frame smoke-house, etc."

Now, if this is to be construed as a joint and entire insurance of the different articles above enumerated, then the court erred in sustaining the demurrer to the second and third paragraphs of the answer; but if it is to be regarded as several insurance of said items, then the court did not err, for it will be observed that there is no averment in these answers that there was any breach of warranty as to the barn or other property destroyed by fire. Upon this subject there is much confusion and conflict in the authorities, many of them, of great respectability, holding that such a policy is to be construed and applied as a joint insurance of the whole property named, while many more, of equal weight and respectability, hold that such a policy is to be construed as a several insurance of the different items named. Of the former class will be found: AEtna Ins. Co. v Resh, 44 Mich. 55, 6 N.W. 114; McGowan v. People's M. F. Ins. Co., 54 Vt. 211; Gottsman v. Pennsylvania Ins. Co., 56 Pa. 210; Schumitsch v. American Ins. Co., 48 Wis. 26, 3 N.W. 595; Hinman v. Hartford F. Ins. Co., 36 Wis. 159; Bowman v. Franklin F. Ins. Co., 40 Md. 620; Lovejoy v. Augusta M. F. Ins. Co., 45 Me. 472, and many others which might be cited;...