The Phenix Insurance Company v. Pickel
| Decision Date | 08 December 1891 |
| Docket Number | 293 |
| Citation | 29 N.E. 432,3 Ind.App. 332 |
| Parties | THE PHENIX INSURANCE COMPANY v. PICKEL |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled Jan. 9, 1892.
From the Sullivan Circuit Court.
Judgment affirmed.
J McCabe and E. F. McCabe, for appellant.
W. A Cullop, C. B. Kessinger, G. W. Buff and J. S. Bays, for appellee.
This case was first tried in the Knox Circuit Court and resulted in a judgment in favor of the insurance company. An appeal was taken to the Supreme Court, and the judgment was reversed upon questions arising upon the pleadings. Pickel v. Phenix Ins. Co., 119 Ind. 291, 21 N.E. 898. Upon the return of the cause, the trial court changed its rulings upon the several paragraphs of answer and reply conformably to the opinion on the former appeal, and the cause was taken to Sullivan county on change of venue, where it was tried upon the issues thus reformed without alteration or amendment. A special verdict was returned upon which the appellee had judgment.
The policy sued upon contained a provision requiring the insured to give the company notice of any loss thereunder forthwith, and to furnish proof of such loss within a specified time.
It is insisted on behalf of appellant that the second paragraph of complaint is defective in that it does not show a compliance with this requirement, nor a sufficient excuse for failing to do so.
No cross-errors were assigned upon the former appeal, and the sufficiency of the paragraph of complaint in question was not discussed in the opinion; yet, in holding several paragraphs of the answer bad upon demurrer, the court impliedly adjudged the complaint sufficient upon the theory that a cause will not be reversed for overruling a demurrer to a defective answer unless it is addressed to a good complaint. This rule has reference to the complaint as a whole, however, and in this case there are two paragraphs of complaint, the first of which is conceded to be good, so it can not be said that the Supreme Court passed upon the sufficiency of the paragraph under consideration, even by implication, and we are free to consider it now.
Relative to the performance of precedent conditions, this paragraph states that "The plaintiff further avers that he performed all of the conditions of said contract upon his part except this, that he did not immediately notify the defendant in writing of said loss, and did not make and send or take to the defendant proof of said loss or damage, at its Chicago office, but as a reason for not doing so the plaintiff says the defendant waived notice and proof thereof in the manner following to wit: Said defendant had actual knowledge thereof, and notified and told the plaintiff that it would not pay said loss, or any part thereof, and that he need not give said notice in writing or make said proof."
The giving of notice and furnishing proof of loss within the time fixed by the contract were made conditions precedent to the company's liability, and it was incumbent upon the insured to show a substantial performance of such conditions, or a sufficient legal excuse for their non-performance. Commercial, etc., Co. v. State, ex rel., 113 Ind. 331, 15 N.E. 518; Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N.E. 285.
It is argued with much plausibility that the second paragraph of complaint fails to show a sufficient excuse for the failure to give notice and furnish proof, because it does not expressly aver when the company had actual notice, nor when it waived a compliance with the conditions.
We agree with counsel for appellant in the view that if the facts constituting the alleged waiver did not occur until after the policy had been forfeited by the appellee's failure to perform the conditions, the attempt to plead a waiver has failed. The mere fact that the company informed the insured that he need not give notice in writing, nor furnish proof of loss after the contract was forfeited, because of his failure so to do, would not of itself revive the liability against the company. May Insurance, section 507.
But we think the complaint, fairly construed, shows by necessary implication that the company had actual notice of the loss, and waived further notice and proof within the time in which the insured could yet have performed the conditions and saved his rights under the policy. Paraphrased, the averments upon this subject are, that the appellee did not give notice of the loss within the time required by the policy, because the company already had actual notice thereof, and relieved him from the duty of giving further notice or furnishing proofs. The necessary meaning of the language employed is that the failure to give the notice as required by the terms of the contract was because of the company's waiver within the time prescribed. The act of the company influenced the appellee to omit the formal notice, and the predication of such omission upon such act of the company sufficiently shows that it occurred while there was yet time and opportunity to perform the conditions.
Facts constituting a cause of action should be stated in plain, concise terms, "and in such a manner as to enable a person of common understanding to know what is intended." Section 338, R. S. 1881.
Substantial justice should be the end to which all pleadings are construed, and to the achievement of this end liberality should attend the construction thereof. Section 376, R. S. 1881.
We do not overlook the rule of pleading imported into our code system from the common law, requiring...
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PhŒnix Ins. Co. v. Pickel
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