DocketNumber: No. 10,627
Citation Numbers: 74 Ind. App. 501
Judges: Nichols
Filed Date: 12/22/1920
Status: Precedential
Modified Date: 7/24/2022
This was an action by appellee to recover on a policy of insurance issued by appellant on a stock of merchandise owned by appellee, and which was destroyed by fire.
It is averred in the first paragraph of the complaint that appellant has its principal office in the city of Indianapolis, with agents located in divers counties of the state, and on February 2, 1918, had a local agent in the town of Petersburg, Indiana. By its policy of insurance duly executed and transmitted by its general agent to its local agent at Petersburg, and by such agent delivered to appellee, appellant insured appellee against
To this complaint appellant answered in two paragraphs, the first being a denial, and the second averring in substance that the policy of insurance sued on was issued pursuant to an application made to appellant, which is made a part of such second paragraph of answer, and which contains the provision that “no insurance shall be in force until this application is approved and the policy issued thereon delivered, and the insured has complied with all the terms and provisions of the by-laws of the insurance company.” Such application and by-laws are made a part of the policy and binding upon appellee. The policy further provides that the insured agrees to make all payments on account of premiums and assessments when so required by the application and by-laws of the company, the making of which said payments shall be a condition precedent to any liability of appellant to appellee under the policy, and further that all such payments must be paid to and received by appellant at its home office in Indianapolis before any loss shall have occurred, before appellant shall be liable for any loss under the policy, and no notice of de
“In any matter relating, to this policy, no person, unless duly authorized in writing, shall be deemed the agent of this company.”
Appellant never authorized Cyrus M. Deffendoll in writing nor in any other way to become the agent of appellant, but, on the contrary, accepted the application from said Cyrus M. Deffendoll as an insurance broker and agent of appellee.
To the second paragraph of answer appellee replied in two paragraphs, the first a denial, and the second averring that at the time said application for insurance was executed by appellee and delivered to Cyrus M. Deffendoll, agent of appellant, and at the time when said agent of appellant delivered the policy sued on to appellee he, said appellee, did not know and was never
The cause was submitted to a jury for trial with verdict for appellee in the sum of $1,000. After motion for a new trial, which was overruled, this appeal.
The only error assigned is the overruling of appellant’s motion for a new trial, which presents as reasons therefor that the verdict is not sustained by sufficient evidence, that it is contrary to law, that the assessment •of the amount of recovery was erroneous, being too large, that the court erred in giving on its own motion each of certain instructions, and in refusing to give each of certain instructions tendered by appellant, in admitting certain evidence over the objection of appellant, and in excluding certain evidence offered by appellant.
Appellee contends that the general bill of exceptions is not in the record, but we hold that, while there is some confusion in the record as to the bill of exceptions being filed after it was signed by the judge, with the assistance of the clerk’s certificate to his return to a
appellant, and thereafter when he received appellee’s policy from appellant and delivered it to appellee, receiving from appellee the premium therefor. Appellant contends that this was a question of law for the trial court, and that it was error for the court to submit it to the jury. However, if appellant is right 'in such contention, no harm was done, for the undisputed evidence abundantly shows that Deffendoll was appellant’s agent, and the court could have reached no ■other conclusion under the facts proved. As such agent, with the policy in his hands for delivery to appellee, he was fully authorized by law to receive the premium from appellee, thereby waiving any provision of the policy to the contrary. Terry v. Provident Fund Society (1895), 13 Ind. App. 1, 41 N. E. 18, 55 Am. St. 217; Prudential Ins. Co. v. Sullivan (1901), 27 Ind. App. 30, 59 N. E. 873; Kerlin v. National Accident Assn. (1893), 8 Ind. App. 628, 35 N. E. 39, 36 N. E. 156; Neff v. Metropolitan Life Ins. Co. (1906), 39 Ind. App. 250, 73 N. E. 1041; Indiana Ins. Co. v. Hartwell (1890), 123 Ind. 177, 24 N. E. 100; Thompson v. Michigan, etc., Ins. Co. (1914), 56 Ind. App. 502, 105 N. E. 780.
The rulings of the court in giving and refusing instructions, each of which instructions pertained to the