The Phenix Insurance Company of Brooklyn, New York v. Lorenz
| Decision Date | 04 March 1893 |
| Docket Number | 373 |
| Parties | THE PHENIX INSURANCE COMPANY OF BROOKLYN, NEW YORK, v. LORENZ |
| Court | Indiana Appellate Court |
A Gilchrist and C. A. De Bruler, for appellant.
W. N Tracewell and R. J. Tracewell, for appellee.
OPINION
This action was brought by John Lorenz against the appellant, upon a policy of fire insurance, to recover damages for injury to property by fire. Judgment was rendered against the appellant in the sum of seven hundred and seventy-six dollars and seventy-five cents, and from this judgment the appeal is taken.
Since this appeal was perfected, said John Lorenz died, and George W. Lorenz has qualified as administrator of the estate of John Lorenz, deceased, and has been substituted as appellee herein.
The policy of insurance declared upon in the complaint was issued July 27, 1887, by the appellant to John Lorenz, insuring him against all loss by fire to his dwelling house, household furniture and wearing apparel, his barn and hay situate therein, and his reapers, mowers, harvester and other farming utensils, wagons, buggies, harness, horses, mules, colts, and cattle, his grain in granaries, barns, or cribs. The policy was to run for five years from date of issuing, and the total amount of the insurance was thirty-two hundred dollars, distributed among several specific items separately, in the following amounts: On dwelling, $ 600; on household furniture and wearing apparel, $ 300; on barn, $ 300; on hay in barn, $ 150; on reapers, mowers, harvesters and other farming utensils, and wagons, buggies and harness, $ 200; on grain in granaries, barn, or crib, $ 700; on horses, mules, and colts, $ 500, and $ 150 on cattle.
It was also alleged in the complaint that on the 21st day of September, 1887, by written agreement indorsed on the face of the policy, fifty dollars of the amount placed on the barn was transferred to straw and corn fodder in the barn; that on the 13th day of November, 1889, his said barn, together with a quantity of hay, straw, oats, corn, corn fodder, farming utensils, wagons, buggies, and harness, being then in said barn, were consumed and destroyed by fire, specifically setting forth the value of each of the articles destroyed.
To the complaint the defendant filed a special answer, in two paragraphs, and the plaintiff filed a reply in four paragraphs, the first of which was a general denial, and the second, third and fourth setting up special matter in avoidance, and all of said paragraphs, except the fourth, were verified.
The sufficiency of neither the complaint nor the answers was tested by demurrer. Demurrers were filed to the second, third, and fourth paragraphs of the reply, which were sustained as to the second and fourth paragraphs, and overruled as to the third, and defendant excepted to the latter ruling. The plaintiff then withdrew the first paragraph of his reply. There was a trial by the court and a finding for the plaintiff.
The only error assigned by the appellant is the ruling of the court below on the demurrer to the third paragraph of the reply.
The appellee has assigned cross-errors, calling in question the ruling of the court in sustaining the demurrers to the second and fourth paragraphs of the reply.
It is contended by appellant's counsel that the facts contained in the third paragraph of the reply are not sufficient to avoid the second paragraph of the answer. The defense set up in the second paragraph of the answer is based upon the following clause contained in the policy of insurance, viz:
"If the property shall hereafter become mortgaged or incumbered, or upon the commencement of foreclosure proceedings, or in case any change shall take place in the title, possession or interest of the assured in the above mentioned property, or if the assured shall not be the sole and unconditional owner in fee of said property, or if the policy shall be assigned, or if the risk be increased in any manner, except by the erection and use of ordinary out-buildings, without consent indorsed hereon, then in each and every one of the above cases, this policy shall be null and void."
The answer contains allegations that after the issuing of the policy of insurance to the plaintiff, to wit, September 8, 1888, he incumbered, by mortgage, the real estate upon which said barn was situate, and of which said barn was a part, and also mortgaged a part of the personal property, a part of which was a part of the personal property destroyed by fire, as alleged in the complaint.
The defendant also alleges in this answer that the policy of insurance sued on "was issued by defendant upon the written and printed application of plaintiff, which is herewith filed and attached hereto."
The application referred to is not filed as an exhibit, nor copied into the record, and does not appear in any manner as a part of the answer.
It is averred, in the third paragraph of reply, that one Daniel Bromfield was the agent of the defendant, and represented it in taking the application for the policy sued on; that the plaintiff could neither read nor write the English language and so informed said agent. He also informed him that there existed a school fund mortgage, which he intended to renew, on the real estate upon which the buildings and personal property insured were situate; and that he had other debts which he intended securing by a mortgage on said property; that he had his property then insured in the Hartford Insurance Company for twenty-two hundred dollars; that said agent represented to plaintiff that the policy of insurance which he then held in the Hartford Insurance Company was no protection to him in case his property was destroyed by fire, and that the company would not pay the loss because the policy contained a clause forbidding him from mortgaging his property, but that if plaintiff would cancel that policy of insurance and make application to defendant, setting out the fact that he desired to mortgage his property, it would issue him a policy which would permit him to incumber his property with the mortgage mentioned in the answer; that "thereupon the said Bromfield, as the agent of the defendant, pretended to fill out and make the application for the policy of insurance in suit in...
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