Vernon Ins. Co. of Indianapolis v. Glenn

• Decision Date: 16 May 1895
• Citation: 13 Ind.App. 340,40 N.E. 759
• Parties: VERNON INS. CO. OF INDIANAPOLIS v. GLENN.
• Court: Indiana Appellate Court

13 Ind.App. 340

40 N.E. 759

VERNON INS. CO. OF INDIANAPOLIS

v.GLENN.¹

Appellate Court of Indiana.

May 16, 1895.

Appeal from circuit court, Washington county; S. B. Voyles, Judge.

Action by James E. Glenn against the Vernon Insurance Company of Indianapolis, Ind. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Chambers, Pickens & Moores, for appellant. P. J. Tracewell and Elliott & Hostetter, for appellee.

LOTZ, J.

The appellee sued the appellant on a fire insurance policy, and recovered judgment in the court below. The questions presented for consideration on this appeal arise under the assignment that the trial court erred in overruling appellant's motion for a new trial. The complaint declared against the Vernon Insurance Company of Indianapolis, Ind. The copy of the policy filed as an exhibit to the complaint discloses that the Vernon Life & Trust Trading & Manufacturing Company of Indianapolis, Ind., issued the policy. In this exhibit the corporation which issued the policy is also designated as the Vernon Insurance Life & Trust Trading & Manufacturing Company of Indianapolis and the Vernon Insurance Company of Indianapolis. The record shows that the defendant voluntarily appeared to the action without the issuing or service of process, and filed a demurrer to the complaint, and also filed an answer in two paragraphs, in which it designated itself as the Vernon Insurance Company. On the trial the plaintiff offered in evidence the original policy, which showed upon its face that it was issued by the Vernon Life & Trust Trading & Manufacturing Company of Indianapolis, Ind. The corporation is also designated therein as the Vernon Insurance Life & Trust Trading & Manufacturing Company of Indianapolis and the Vernon Insurance Company. The defendant objected to the introduction of this evidence, for the reason that it did not appear to be the same policy sued on, and because it did not conform to the allegations of the complaint. This objection was overruled, to which the defendant excepted. This ruling was assigned as one of the causes for a new trial. As a general rule, when an action is predicated on a written instrument, and there is a variance between the averments of the complaint and the exhibit, the exhibit controls in construing the pleading. The action was instituted and prosecuted upon the evident theory that all three of the names used to designate the corporation were the equivalents each of the...