Vulcan Insurance Company v. Johnson

• Decision Date: 05 November 1920
• Docket Number: 10,519
• Parties: VULCAN INSURANCE COMPANY v. JOHNSON
• Court: Indiana Appellate Court

128 N.E. 664

74 Ind.App. 62

VULCAN INSURANCE COMPANY v. JOHNSON

No. 10,519

Court of Appeals of Indiana

November 5, 1920

From Marion Superior Court (105,304); W. W. Thornton, Judge.

Action by Archie Johnson against the Vulcan Insurance Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Carl J Kollmeyer and Julian Sharpnack, for appellant.

James M. Ogden and S. C. Kivett, for appellee.

OPINION

NICHOLS, J.

Action by appellee against appellant on a fire insurance policy to collect insurance on account of the loss by fire of an automobile, which was insured under the terms of the policy. The action was commenced in Morgan county and venued to the Marion Superior Court.

Appellant filed five paragraphs of answer, the first a denial; the second, third, and fourth averred in effect a condition of the policy that it should be void if the insured's interest in the property was other than unconditional and sole ownership, and that the insured's interest was not sole and unconditional, being a purchaser's interest where the payment of the purchase price was in installments with a condition that the title should remain in the seller until all installments were paid; and the fifth averred the amount that had been paid by appellee on the purchase price of the automobile and that it was the full amount that he should recover if he recover at all.

Appellee filed two paragraphs of reply to these paragraphs of answer, the first a denial, and the second averring in substance that appellee purchased the automobile from one John L. Partlow, paying a part of the purchase price in cash and giving his notes for the remainder thereof, with an agreement that, as security for the deferred payments, the title to the property should remain in said Partlow until the notes were paid, and that appellee should take out insurance on the property; that, at the time of the application for the insurance, appellee fully informed appellant's agent of the kind and character of his title and that, with such full knowledge, appellant issued the policy and accepted from appellee the premium; that the fire occurred March 3, 1916, that appellee furnished appellant with proof of loss April 24, 1916, at which time he again informed appellant of the nature of his title as in the beginning; that appellee's action was commenced in July, 1916, and that with full knowledge of the facts appellant retained the premium until in December, 1916, and that it made no offer to rescind before that time, and that appellant thereby waived the conditions of its policy averred in its paragraphs of answer.

A demurrer to this paragraph of reply was overruled, and the ruling is assigned as error. As it does not appear by appellant's brief that any exceptions were saved to the ruling on the demurrer, we are not required to consider the question, but we deem it expedient to cite authorities that confirm the court in its...