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singer v. Fort, 118 Ind. 107, 20 N. E. 653; Railway Co. v. Dickason, 130 Ind. 164, 29 N. E. 775; Brown v. Railway Co., 135 Ind. 587, 35 N. E. 503; Barner v. Bayless, 134 Ind. 600, 33 N. E. 907, 34 N. E. 502. It is also the established rule that a joint assignment of error must be good as to all of the appellants who join in it, or it will be good as to none. Carr v. Carr, 137 Ind. 234, 36 N. E. 899; Medical College v. Commingore, 140 Ind. 296, 39 N. E. 744; Goss v. Wallace, 140 Ind. 541, 39 N. E. 920; Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540; Earhart v. Farmers' Creamery, 148 Ind. 79,47 N. E. 226; Hubbard v. Bell, 4 Ind. App. 180, 30 N. E. 906; Water Co. v. Burkett, 13 Ind. App. 277, 41 N. E. 477; Kempf v. Association, 13 Ind. App. 570, 41 N. E. 1065; Killian v. State, 15 Ind. App. 261, 43 N. E. 955; Shick v. Citizens' Enterprise Co., 15 Ind. App. 329, 44 N. E. 48, 57 Am. St. Rep. 230; Supreme Council v. Boyle, 15 Ind. App. 342, 44 N. E. 56; Board v. Fraser, 19 Ind. App. 520, 49 N. E. 42, 831; M. A. Sweeney Co. v. Fry, 151 Ind. 178, 181, 182, 51 N. E. 234, and authorities cited. Appellants Booker and Runnels, not having excepted to the conclusions of law, have no right to complain. The assignment of error is not, therefore, good as to either of the appellants.

The judgment must be affirmed without a consideration of the merits of the contro

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INSURANCE-WAIVER OF PROOF OF LOSSOWNERSHIP OF PROPERTY-PLEADING.

1. In an action on a fire insurance policy covering property destroyed in November, 1899, an averment that plaintiff was, on June 7, 1899 (the date of the policy), "and now is," the owner of a dwelling house on a certain street, and another averment that he was on such date, "and now is," the owner of a lot, together with the buildings thereon, and on such lot was a dwelling, which he occupied and used as his home until the loss, is insuflicient to show that insured was the owner at the time of the loss.

2. Where an insurance company's agent, sent by it to adjust the loss, informed insured on request that proof of loss would not be required, and promised, after an examination of the property, to pay a stipulated sum in settlement, and, on disagreement with insured, proposed arbitration, the company must be held to have waived proof of loss.

Appeal from circuit court, Jay county; John M. Smith, Judge.

Action by Isaac Peterson against the Prussian National Insurance Company. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.

Clark J. Lutz, Vincent G. Clifford, Wilbur F. Browder, and Miefield S. Moffett, for appellants. Shaffer Peterson and Frank H. Snyder, for appellee.

Rehearing denied.

BLACK, J. The appellees recovered judgment in this action against the appellant, a foreign insurance company, upon a policy of insurance against loss by fire. There were four paragraphs of complaint, and the appellant's demurrer to each of them for want of sufficient facts was overruled. The appellant, in discussing the complaint and its several paragraphs, objects thereto on the ground that it nowhere alleges that the appellee was the owner of the property injured by fire at the time of the loss. The policy bore date of the 7th of June, 1899, and thereby the appellant insured the appellee for the term of one year from that date against loss or damage by fire to a described dwelling house in the sum of $300. The fire was alleged to have occurred November 22, 1899, and the action was commenced in January, 1900. In the first paragraph of the complaint it was alleged "that on the 7th day of June, 1899, he [the appellee] was, and now is, the owner of a dwelling house," etc., "on First street," etc. In the second paragraph it was alleged "that on the 7th day of June, 1899, he [the appellee] was, and is now, the owner of inlot." etc., "together with the buildings thereon situated; that on said lot there was a onestory dwelling house [described], which he occupied and used as his home, as well as that of his family, until the loss hereinafter set out." The third and fourth paragraphs each contained allegations like those of the third paragraph above set forth. Unless the averments quoted can be said to state sufficiently the appellee's ownership at the time of the loss, it was not shown by either paragraph of the complaint. It must be agreed that these averments cannot properly be construed as meaning that the appellee owned the property at the time of the loss. It has been many times held, and is a settled rule of pleading in this state, that a complaint on a contract of fire insurance is insufficient if it fail to show that the insured was the owner of the property, or had an insurable interest therein, at the time of the loss. Insurance Co. v. Bogeman, 4 Ind. App. 237, 30 N. E. 7, and cases cited; Assurance Co. v. Koontz, 17 Ind. App. 54, 46 N. E. 95; Same v. McCarty, 18 Ind. App. 449, 48 N. E. 265; Insurance Co. v. Coombs, 19 Ind. App. 331, 49 N. E. 471.

It is objected, further, that in each paragraph of complaint there was failure to show waiver of proof of loss. It was alleged in the first paragraph, "that plaintiff has duly performed all of the conditions on his part required by law to be performed, except proof of loss required by the policy, which was waived by defendant by sending their adjuster, John C. Wright, to adjust said loss, who, after examination of the premises, offered the plaintiff $250 in full payment of said loss, and no more, which offer the plaintiff refused to accept in full payment of said loss," etc. In the second, third, and fourth paragraphs, the appellee alleged that, he having received the

policy from one E. F. Coffee, residing in the city where the property was, who signed the policy, "E. F. Coffee, Agt., Decatur, Indiana," the appellee, the day after the fire, believing that Coffee was authorized to transact business for the appellant, made inquiry of him, what, if anything, he had done in reference to the loss, and what notice, if any, he had given the appellant of the loss; and Coffee then informed the appellee that he had notified the appellant in writing of the loss, and in reply thereto he would receive the necessary instructions for the appellee to follow; that shortly thereafter Coffee notified the appellee that he had received information of the appellant that it had received the notice sent by him, and that the appellant, in a few days, would send its adjuster to adjust the loss; that shortly thereafter Coffee introduced to the appellee a person who he said was John C. Wright, who was the adjuster of the appellant, and that he had come to adjust the loss; that the appellee and Wright undertook to adjust the loss, the appellee believing that said person was the person he represented himself to be; that appellee at the time made inquiry of Wright if the appellant would require any additional proof of the loss as required by the policy, at which time, in answer to said inquiry, Wright informed the appellee that the appellant had all the notice that was necessary, and that they would not require the notice of loss provided for in the policy; that the appellee, relying upon said statements and representations of Wright, did not send the proof as required by the policy; that Wright thereupon, after an examination of the building or parts which were not wholly destroyed by fire, informed the appellee that the appellant would pay the sum of $250 in full for the loss sustained by the appellee, and in full settlement of his claim, and no more; which offer the appellee did not and would not accept in settlement of the loss. In the second paragraph it was further alleged that Wright thereupon left the appellee and the city, and had not since returned, nor had said loss been paid, etc. In the third paragraph, after the averment that Wright made such offer, and that the appellee did not and would not accept, it was alleged that thereupon Wright informed the appellee that the difference between the appellant and the appellee must be settled by arbitration, he nominating on the part of the appellant a man named Millikin, and at the same time requesting appellee to designate his arbitrator, which the appellee did; that he thereupon nominated a competent person, a builder and contractor of said city, named E. A. Mann; that as soon as Wright had ascertained the name of the appellee's arbitrator he prepared two contracts, as the appellee supposed, and requested the appellee to sign each of them, which papers contained written and printed provisions in regard to the arbitration, as the appellee supposed; but the appellee refused to sign these contracts, and

thereupon notified Wright that he could have his arbitrator ready at any time, and would so have him ready to arbitrate the loss at any time when Millikin would appear, but that on appellee's refusal to sign said contract Wright refused to enter further into negotiations in reference to the arbitration, and thereupon left the appellee and the city, and had done nothing further in regard to ascertaining appellee's loss; neither had Wright nor the appellant paid the loss, or any part of it, although the appellee at all times had his said arbitrator waiting to adjust the loss, and Millikin had never appeared or requested the appointment of a day; and that the appellee had performed all of the conditions of the policy on his part to be performed, except as herein set out. In the fourth paragraph, after the averment concerning the offer of Wright and its nonacceptance, it was alleged that since the date of Wright's offer the appellee had received from the appellant a request for arbitration of the matters in difference as herein set out in the form of letters written by the appellant and received by the appellee through the post office; that the appellee, in answer thereto, in like manner informed the appellant that he was ready and willing to submit said matters to arbitration, and that the appellant should and might send its arbitrator to the premises on any day, and, if his arbitrator could not attend, there were in the city six or eight competent builders and contractors, either of them competent, and either of whom would be satisfactory to the appellee, but that he would not sign up any contract or papers authorizing such an adjustment, but he would be bound and accept any award made by said board of arbitration in full settlement of the loss; that thereafter the appellant informed the appellee that he was not bound to sign up said adjustment papers, but that he should send the appellant the name of his appraiser, which he had long theretofore given the appellant; that all the letters and requests and statements made by the appellant in reference to the payment or adjustment of the loss were not made in good faith on its part, and it had never caused its "said adjuster" to come to said city, nor had it had said adjuster to confer with the appellee's adjuster, nor had it offered to fix a day or time when the same might be adjusted and the amount of the loss ascertained, but had at all times left the property in the condition "as aforesaid," whereby the appellee had lost the use of the same and of the money due him from the appellant, although the appellee had complied with all the other requirements of the policy on his part to be performed, etc. Passing over the faultiness of these pleadings in showing matters of evidence instead of issuable facts, and their failure as pleadings to properly show the authority of Coffee and Wright in the premises, in which particulars they may readily be corrected, we may consider them as if amended in these respects,

with the view of determining the objection
of the appellant on the ground of failure to
show waiver of proof of loss. Waiver of a
provision of the policy requiring proof of loss
within a specified time may be inferred from
such acts and conduct as are inconsistent
with an intention to insist upon strict per-
formance. Insurance Co. v. Keating, 86 Md.

130, 38 Atl. 29.

If it be made to appear that an agent of the insurance company is charged, as its representative, with the duty of settling the loss with the insured, it would seem only reasonable to say that he may dispense with the strict performance of the stipulations of the policy inserted therein for the benefit of the company having reference to the manner of ascertaining the extent of the liability of the company. In Insurance Co. v. Shryer, 85 Ind. 362, speaking of the authority of an adjuster of an insurance company, whose general duty is to adjust and report losses, and discussing the question as to whether or not he has authority to waive preliminary proof of loss, it was said: "It would seem that the better reason is with the cases which hold that he has, for a company that sends an agent to ascertain the nature, cause, and extent of the loss, and employs him in that particular line of duty, may well be deemed to have invested him with a general authority in all such matters." agent of an insurance company, sent by it A special to investigate a loss, was held to have apparent authority to waive preliminary proof. Insurance Co. v. Keating, 86 Md. 130, 38 Atl. 29. When the insurance company, having notice of the loss, refers the matter to an authorized adjuster, who makes full investigation thereof and leads the insured to believe that there is nothing in the way of payment of the claim except a difference of opinion as to the value of the property, the furnishing of formal proof of loss, it was held, is waived. Hitchcock v. Insurance Co., 10 S. D. 271, 72 N. W. 898. In Insurance Co. v. Sweetser, 116 Ind. 370, 19 N. E. 159, where it appeared by the complaint that an adjustment had been made by an agent duly empowered for that purpose. and that the company had afterward notified the plaintiff that the loss would not be paid, it was held that it must be deemed that further notice and proof were waived. It was said: "After an insurance company has itself taken cognizance of a loss, and prepared such proofs as it deems essential to an adjustment, the insured may assume, until notified to the contrary, that additional notice and proofs are not required." See, also, Insurance Co. v. Capehart, 108 Ind. 270, 8 N. E. 285. In Murphy v. Insurance Co., 70 Mo. App. 78, it was said: "If the insurer offers to pay what he thinks has been the amount of the loss of the insured, and is rejected by the latter, this implies that the insurer is satisfied of the integrity of the loss. It implies further that he will not require proof

(Ind.

of loss, but will pay the amount ascertained by the arbitrators. The impli cations already stated continue as long as insurer's offer of settlement is not withdrawn." See, also, Insurance Co. v. Simmons, 49 Neb. 811, 69 N. W. 125. If payment be withheld upon special grounds other than the failure to furnish proof of loss or the insufficiency of proof furnished, and having no reference to want or the insufficiency of such proof, the insurance company thereby waives its right to defend upon the ground of such want or insufficiency of proof. Insurance Co. v. Shryer, 85 Ind. 362; Commercial Assur. Co. v. State, 113 Ind. 331, 15 N. E. 518; Assurance Co. v. McCarty, 18 Ind. App. 449, 48 N. E. 265; Insurance Co. v. policy contained a provision that, if the apSimmons, 49 Neb. 811, 69 N. W. 125. The pellant and the appellee should differ as to the amount of loss, it should be ascertained by appraisers, provision for whose selection was made; but there was no stipulation that the submission to arbitration should be in writing. A parol submission to arbitration is sufficient, and binding upon the parties, unless unconditionally revoked before the making of the award. It was so held where one of the parties refused to sign a written submission to arbitration as suggested by one of the arbitrators. Dilks v. Hammond, 86 Ind. 563. A provision for proof of loss is waived if the insurer object solely to the amount claimed, and agree with the insured to the ascertainment of the damage by appraisers, and to pay the amount so ascertained. Snowden v. Insurance Co.. 122 Pa. 502, 16 Atl. 22. It was said in Murphy v. Insurance Co., 70 Mo. App. 78, that the legal effect of the rejected offer of settlement was to set in active operation the condition of the policy respecting arbitration, and that, when the provision in respect to arbitration is set in active operation, that in respect to making proofs of loss is superseded and rendered inactive. See Bishop v. Insurance Co., 130 N. Y. 448, 29 N. E. 844. In the case before us there was no occasion for furnishing a list of articles lost. The only thing insured was a building, which was partly consumed by the fire. The appellant treated the notice of loss which it received as sufficient by sending its adjuster in response thereto. The adjuster went, and saw the extent of the destruction, and estimated the loss, and announced the amount thereof, which he offered to pay, without demanding any preliminary proof, though he was specifically questioned upon that point by the insured. His answer referred to notice, and not to proof. Whether this be regarded as an attempted evasion, or as only amounting to a dispensing with that which he mentioned in his answer,-that is, with notice,-the requirement for which was already sufficiently fulfilled, still, after having been so interrogated, and apprised concerning the nonproduction of proof of loss, he, with knowledge

gained by personal inspection, offered to pay a specified sum, being only $50 less than the full amount of the insurance. It may well be said that the insured might reasonably conclude, in view of such conduct of the adjuster, and in consideration of the nature of the risk, that the strict requirement of the policy concerning proof of loss was not to be observed. The following language, quoted in Insurance Co. v. Shryer, 85 Ind. 362, 366, from May on Insurance, is pertinent: "It is to be observed that it is the duty of insurers, pending the consideration of the proofs of loss, to bear themselves with all good faith towards the claimant; and, if they are dissatisfied with the proof furnished, and have or have not the right to demand further proof before thir liability becomes fixed, they ought to make known to the insured the fact and the nature of these demands without unnecessary delay; otherwise they will be held to have waived their right in this regard." It would seem that this would be especially so where the insurer's adjuster on the spot is specifically questioned on this subject by the insured.

There seems to be material in each paragraph of the complaint from which to construct a sufficient pleading showing waiver of proof of loss in the conduct of the appellant, through its agent, who had investigated the loss, when called upon to state whether further proof would be required, in his failure to require formal proof and promising to pay a stipulated sum, and, upon the disagreement of the appellee with such proposal, whereby occasion arose for arbitration, in proposing to submit the controversy to arbitration; also that there is indication that the fault of a failure to arbitrate the dispute rests upon the appellant; and the appellee ought not, because of such failure, so occasioned, to be deprived of remedy by suit.

The judgment is reversed, with instruction to sustain the demurrer to each paragraph of the complaint.

(29 Ind. App. 198)

PHOENIX ACCIDENT & SICK BEN. ASS'N v. HORTON.

(Appellate Court of Indiana, Division No. 1. May 27, 1902.)

INSURANCE-COMPLAINT-EVIDENCE-APPEAL. 1. In an action before a justice on a policy of insurance, the complaint is not bad against a demurrer for failure to make a copy of the application an exhibit, though made a part of the policy by its terms.

2. Where there is some evidence to sustain the conclusion of the trial court, though conflicting, the appellate court cannot weigh the evidence.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by Julius C. Horton against the Phoenix Accident & Sick Benefit Association.

From a judgment for plaintiff, defendant appeals. Affirmed.

Robert S. Robertson and William S. O'Rourke, for appellant. Ryan & Ryan, for appellee.

ROBINSON, J. Suit commenced before a justice of the peace on a policy of insurance. The complaint was not bad against a demurrer for failure to make a copy of the application made by appellee for insurance an exhibit. It is well settled that in such a case the application, or a copy, though made a part of the policy by its terms, need not be filed with the complaint. Insurance Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769; Insurance Co. v. Kessler, 84 Ind. 310; Insurance Co. v. Stark, 120 Ind. 444, 22 N. E. 413; Insurance Co. v. Byrkett, 9 Ind. App. 443, 36 N. E. 779. Moreover, under the very liberal rules of pleading in justices' courts, we think the complaint sufficient to apprise appellant of the nature of the claim, and that a recovery would bar another suit for the same cause of action. See Insurance Co. v. Bowser, 20 Ind. App. 557, 50 N. E. 86, and cases cited.

The evidence is conflicting, but, as there is some evidence to sustain the trial court's conclusion, we cannot weigh the evidence to determine whether such conclusion has a preponderance in its support. Judgment affirmed.

(197 111. 30)

FRENCH et al. v. NORTHERN TRUST

CO.1

(Supreme Court of Illinois. April 16, 1902.)

TESTAMENTARY TRUST-WANT OF TRUSTEEAPPOINTMENT BY COURT-TRUSTEE'S POWERS-CONVEYANCE TO BENEFICIARY-EXERCISE OF DISCRETION PERSONAL CONFIDENCE TERMINATION OF TRUST.

1. A will named a general trustee for the whole estate, to whom all the property was devised, to pass on his death to the executors and trustees of his will. A separate trust was then created for a share of a devisee, and a trustee appointed for such share, subject to a supervisory power of the general trustee to direct a conveyance or transfer of the separate trust estate, and with power in the general trustee to appoint a successor by deed or will; and in default of appointment his executors or trustees were to act. The general trustee, however, never exercised the power to appoint a trustee on a surrender of the separate trust. He did not name a separate trustee by his will, and the executors and trustees appointed to execute his will declined to act. Held that, as equity would not permit a trust to fail for want of a trustee, the court properly appointed a trustee for the separate trust.

2. A will created a separate trust as to one share of the estate, which the trustee was to convey to the life beneficiary, who, the will stated, had shown indications of insanity, when satisfied that he was competent to take care thereof, and not before, or when directed to do so by the general trustee of the whole estate. Held, that the power to convey created thereby was discretionary, involving personal confidence, and hence did not pass to a successor appointed by the court.

1 Rehearing denied June 19, 1902.

3. The exercise of the power to convey could not be compelled on the mere determination that the beneficiary was sane.

4. The beneficiary was to have for his support the income of his share of the estate, which, in so far as it was not conveyed to him during his life, was to go to his heirs; and a part of it was conveyed to him by direction of the general trustee. Held, as to the remainder, that the fact that the beneficiary was sane, and that there was no one to exercise the discretion as to a conveyance thereof reposed in the original testamentary trustee, did not terminate the trust, and entitle either the beneficiary or one of his creditors to a conveyance of the estate.

Appeal from appellate court, First district. Bill by Charles S. French against the Northern Trust Company and Charles Joel Walter. A decree dismissing a cross bill filed by the latter defendant, after sustaining a demurrer thereto by the defendant company, and dismissing the original bill for want of equity, was affirmed by the appellate court (98 Ill. App. 410), and complainant and defendant Walter appeal. Affirmed.

W. J. Lavery, for appellant Charles Joel Walter. R. H. Towne, for appellant Charles S. French. Dupee, Judah, Willard & Wolf, for appellee.

CARTWRIGHT, J. Charles S. French, one of the appellants, filed his bill in this case in the circuit court of Cook county against Charles Joel Walter, the other appellant, and the Northern Trust Company, appellee, alleging that he had recovered a judgment against the defendant Charles Joel Walter for $9,336.44; that execution was returned unsatisfied; and that the defendant the Northern Trust Company had in its hands upwards of $48,000 which it claimed to hold as trustee for said Charles Joel Walter under the provisions of the will of Jerusha Maxwell; and praying that the trust be declared executed, and the judgment of the complainant paid out of the funds. Charles Joel Walter answered, admitting the material allegations of the bill. The Northern Trust Company answered, alleging that the judgment was obtained by confession and collusion between the complainant and the judgment debtor, and denying the liability of the fund to the payment of the judgment. The defendant Charles Joel Walter then filed his cross bill against the other parties to the suit, claiming that the trust created by the will was limited to the period of his supposed lunacy, and alleging that he was sane, and had been for 20 years. He prayed that he be declared sane and without mental disability, that the trust be declared executed, and that the trustee turn over the estate to him. The defendant the Northern Trust Company demurred to the cross bill, and the demurrer was sustained and the bill dismissed; and the court, being of the opinion that the original bill was subject to the same infirmities as the cross bill, dismissed it for want of equity apparent upon its face. The appellate court affirmed the decree.

The controversy is over money and securities held by the Northern Trust Company as trustee for Charles Joel Walter, and is to be determined upon the allegations of the cross bill admitted by the demurrer, and the averments of the original bill, which are the same in effect. The right of French to a decree under the original creditor's bill must depend upon the success of the cross bill, and, if Charles Joel Walter has no right to the fund, his creditor, French, has none. The original bill must stand or fall with the cross bill.

The facts, as shown by the pleadings, are as follows:

In 1875 Jerusha Maxwell, of Walworth county, Wis., the grandmother of Charles Joel Walter, died testate, and her will was admitted to probate in said county. It contained the following provisions:

"Item 2. Subject to above, I devise and bequeath all my property and estate which may belong to me in my own right at my decease to the children of Ophelia, late wife of Joel C. Walter, in equal shares; the share of Charles Joel to be vested in a trustee, as hereinafter provided. If any of said children should die before me, leaving issue, such issue to take same share as parent if living."

"Item 4. Since by will of my late husband power is given me to devise and bequeath all his property except as in said will is excepted, I hereby, in execution of said power, devise all property and estate covered by said power to Joel C. Walter, and upon his death to executors and trustees of his last will, in trust for children of Ophelia, late wife of Joel C. Walter, in equal shares; in case of death of any child before me, issue to take same share as parent. Share allotted to Ida Ophelia Walter shall be held in trust for her after her arrival at lawful age. Any income be paid in regular quarterly payments upon her own receipt solely, without power to anticipate during her life, to be held and enjoyed free and clear of any husband she may have, to her sole use. Upon her death, shares so allotted shall vest in her heirs at law other than her husband. Trustee under this item shall have power to make division of property covered by same, receive interest and profits, pay taxes and other charges, make repairs, sell and convey, and do all other acts necessary to fully execute the trust.

"Item 5. As Charles Joel Walter has shown indications of not being in his right mind, I direct that his entire share shall go to and be vested in a trustee, who shall see that the said Charles Joel is properly maintained and comfortably provided for out of such property held by such trustee; he using such amount for that purpose as, in his discretion, shall seem best, with power in said trustee to sell and convey any property belonging to share of said Charles Joel, when, in his discretion, it shall appear proper; and

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